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A  SHORT  HISTORY  OF 
ENGLISH  LAW 


A  SHORT  ;•; 

HISTORY  OF  ENGLISH  LAW 


FROM  THE   EARLIEST  TIMES  TO  THE 
END   OF  THE   YEAR   1911 


BY 

EDWARD   JENKS,  M.A.,  B.C.L. 

OF    THE    MIDDLE    TEMPLE,    BARRISTER-AT-LAW,    PRINCIPAL    AND    DIRECTOR 
OF    LEGAL    STUDIES    OF    THE    LAW    SOCIETY,    ENGLAND 


BOSTON 

LITTLE,   BROWN,  AND   COMPANY 

1913 


Copyright,  1912, 
By  Edward  Jenks. 


All  rights  reserved. 


rtftur^v 


MO»<;3  ■ 


8.  J.  PAEKII1I.L  A   Co.,   IJOSTON,  U.   S.  A. 


TO 

OLIVER   WENDELL   HOLMES 

ASSOCIATE   JUSTICE   OF    THE    SUPREME    COURT 

OF    THE    UNITED    STATES 
FORMERLY  CHIEF   JUSTICE    OF    MASSACHUSETTS 
AUTHOR    OF    "THE    COMMON   LAW  " 
THE    AMERICAN   EDITION   OF    THIS   WORK 

IS  (with  permission) 

DEDICATED 


PREFACE 

About  ten  years  ago,  Messrs.  Methuen  &  Co.  approached  the 
author  with  a  proposal  for  a  "History  of  English  Law"  in  one 
volume.  The  interest  aroused  in  a  long-neglected  subject  by 
the  brilliant  work  of  the  late  Sir  Fitzjames  Stephen,  of  Sir 
Frederick  Pollock,  of  Mr.  Justice  Holmes,  and,  above  all,  of  the 
late  Professor  Maitland,  to  say  nothing  of  others  whose  contri- 
butions, though  more  fragmentary,  were  profoundly  interesting, 
had  convinced  most  teachers  of  English  Law  that  a  rich  field 
of  educational  effort  awaited  development.  L^nfortunately,  the 
scale  on  which  the  writing  of  these  authors  was  planned,  ren- 
dered them  unsuitable  for  the  average  student,  whose  time  was 
limited ;  and  it  was  felt  that  the  subject  could  hardly  take  the 
place  which  it  deserved  in  the  ordinary  training  of  the  lawyer,  till 
some  more  modest,  but  comprehensive,  manual  had  appeared. 
At  the  time  when  the  approach  referred  to  was  made,  the 
author's  time  was  deeply  pledged  in  other  directions;  and  he 
doubted,  also,  whether  the  moment  had  then  arrived  at  which 
the  state  of. available  knowledge  rendered  such  a  work  possible. 
He  therefore  suggested  an  application  to  his  friend  Dr.  Holds- 
worth. 

As  is  well  known,  that  application  was  not  made  in  vain ; 
and  the  world  is  to-day  the  richer  by  Dr.  Holdsworth's  three 
volumes.  But,  in  the  hands  of  Dr.  Holdsworth,  the  work  has 
proved  to  be  something  very  difierent  from  what  was  at  first 
contemplated ;  and  the  plan  for  a  single  volume  has  developed 
into  a  scheme  of  which  the  first  three  volumes  bring  us  down 
only  to  the  end  of  the  sixteenth  century. 

Meanwhile,  largely  owing  to  the  labours  of  Professor  Maitland 
and  other  contributors  to  the  noble  series  of  volumes  produced 
by  the  Selden  Society,  more  material  has  become  available; 
while  the  recent  pubHcation,  the  fruit  of  American  enterprise, 
of  the  three  volumes  of  Select  Essays  in  Anglo-American  Legal 
History,  has  further  stimulated  interest  in  the  subject. 


viii  PREFACE 

It  seemed,  therefore,  to  the  author,  that  the  time  had  at  last 
arrived,  at  which  ^Messrs.  Methuen  &  Co.'s  original  idea  might 
be  realized ;  and  he  ventured  to  approach  them  with  a  sugges- 
tion for  a  revival  of  the  plan.  It  was,  of  course,  obviously  due 
to  Dr.  Holdsworth  that  his  concurrence  should  also  be  obtained. 
In  both  quarters  the  response  was  prompt  and  cordial ;  and  Dr. 
Holdsworth,  with  great  generosity,  further  offered  to  read  the 
proof  sheets  of  the  intended  work,  and  give  the  author  the  benefit 
of  his  criticism. 

Thus  the  way  seemed  clear ;  and  the  present  book  is  the 
result.  As  space  was  limited,  the  author  has  touched  lightly 
upon  that  side  of  our  legal  history  which  has  already  been  made 
the  subject  of  adequate  treatment,  viz.  the  origin  and  develop- 
ment of  the  Courts,  and  the  relations  of  the  State  towards  its 
subjects.  These  can  be  found  conveniently  'summarized  in 
Professor  Maitland's  posthumously  published  Constiiiitional  His- 
tory of  England,  in  the  first  volume  of  Dr.  Iloldsworth's  His- 
tory of  English  Laic,  and  in  Dr.  Carter's  English  Legal  Institutions, 
as  well  as  in  the  many  other  useful  treatises  on  Constitutional 
History.  But  with  this  exception,  the  present  volume  attempts 
to  cover  the  whole  field  of  English  legal  history,  from  the  earliest 
times  to  the  present  day. 

That  this  is  a  sufficiently  ambitious  attempt,  no  one  can  be 
better  aware  than  the  author.  Though  he  has  made  no  state- 
ment which  he  has  not  verified  from  original  evidence,  he  has, 
naturally,  availed  himself  to  the  full  of  the  work  of  previous 
writers  for  the  earlier  part  of  his  task.  But,  from  the  end  of  the 
sixteenth  century,  he  has  sailed  over  an  almost  uncharted  sea; 
and  his  responsibility  is  great.  He  can  only  plead  that  he  has 
kept  a  careful  look-out,  and  that  he  has  striven  faithfully  to  sail 
the  ship  in  the  main  current,  without  attempting  to  enter  the 
bays  and  inlets,  which  to  have  explored  would  either  have  pro- 
longed the  voyage  to  an  undue  length,  or  have  neglected  the 
essential  for  the  picturesque  but  less  important. 

One  other  word  as  to  the  plan  of  the  book  may  be  permitted. 
An  American  correspondent,  whose  reputation  as  a  teacher  and 
writer  stands  high,  has  urged  upon  the  author  the  adoption  of 
what  is  known  as  the  "vertical"  method  of  writing  history, 
by  which  the  development  of  each  existing  institution  is  sepa- 
rately traced  from  its  origin  to  its  present  form.     After  long 


PREFACE  ix 

reflection,  the  author  felt  it  impossible  to  adopt  the  plan  pro- 
posed by  this  suggestion,  because,  in  his  view,  it  would  either 
involve  almost  endless  repetition,  or  it  would  obscure  one  of 
the  most  important  lessons  to  be  learnt  from  English  legal 
history.  For,  if  there  is  one  truth  which  that  history  makes  more 
clear  than  another,  it  is  that  the  sharp  division  into  distinct 
subjects  which  is  so  familiar  a  feature  of  a  modern  and  highly 
complex  system  of  law,  finds  no  place  in  its  early  stages.  Prop- 
erty, contract,  tort,  crime,  even  the  apparently  fundamental 
distinction  between  substantive  law  and  procedure,  are  not  rec- 
ognized by  primitive  people.  The  germs  of  all  these  ideas  may 
be  detected  in  early  law  by  the  microscope  of  the  expert ;  just 
as  the  future  stem,  tendrils,  leaves,  flowers,  and  fruit,  may  be 
detected  in  the  seed  of  a  plant.  But  one  of  the  most  valuable 
lessons  to  be  learnt  from  the  study  of  the  growth  of  a  native  and 
independent  system  of  law  like  the  English,  is  an  appreciation 
of  the  processes  by  which  these  specialized  ideas  have  slowly 
detached  themselves  from  those  primitive  notions  of  right  and 
wrong  which  are  the  kernel  of  all  systems  of  law.  So  the  author 
has  adhered  to  the  old-fashioned  plan ;  dividing  his  subject  into 
historical  periods,  marked  by  events  wdiich  seemed  to  him  to  be 
milestones  on  the  ever-broadening  path  of  legal  development. 

It  remains  only  for  the  author  to  express  his  grateful  thanks 
to  those  whose  labours  have  rendered  his  task  possible  of  achieve- 
ment (if  indeed  it  has  been  achieved),  and  to  commit  his  work 
to  the  judgment  of  the  public.  To  Dr.  Holdsworth,  who,  as 
has  been  stated,  has  been  kind  enough  to  spare  the  time  to  read 
the  proof  sheets,  his  thanks  are  most  especially  due.  It  is 
needless  to  say  that  he  has  benefited  greatly  by  Dr.  Holdsworth's 
suggestions ;  and,  where  he  has  not  been  convinced  by  them,  he 
has,  doubtless,  been  wrong.  As  for  the  work,  the  author  will 
be  more  than  satisfied  if  his  attempt  encourages  others  to  do 
better.  He  makes,  of  course,  no  claim  to  completeness;  his 
hope  is  only  that  he  has  shown  some  sense  of  proportion,  and 
an  essential  reverence  for  the  truth,  which  will  not  be  found 
without  their  uses.  In  a  word,  his  aim  has  been  to  stimulate, 
not  to  satisfy. 

London,  April,  1912. 


CONTENTS 


PAGES 

Table  of  Statutes xvii 

Table  of  Cases xxix 

List  of  Abbreviations xxxvii 

PERIOD  I 

BEFOEE  THE  NORMAN  CONQUEST 

CHAPTER  I 

OLD    ENGLISH    LAW 

The  Anglo-Saxon  Laws  —  relation  to  Roman  Law  and  Canon  Law  —  People's 
Ranks  —  the  problem  of  serfdom  —  the  thegn  —  the  blood  feud  —  the  wer- 
gild system — oaths  and  ordeals  —  the  'bot-leas'  wrongs  —  the  'King's 
rights  '  —  theft  and  the  law  of  property  —  vouching  to  warranty  —  property 
in  land  —  folc-land  and  boc-laud  —  contract  and  tort — '  wed  '  and  '  borh ' 
— 'the  view  of  Sir  Henry  Maine 3-13 

PERIOD  II 

THE  CONQUEST  TO  THE  DEATH  OF  HENEY  III 
(1066-1272) 

CHAPTER  II 

SOURCES    OF    THE    COMMON    LAW 

The  '  common  law '  —  its  elements  —  (A)  the  lex  terrae  —  the  Quadripartitus  — 
Leges  Henrici  Primi  —  Leges  Willelmi  —  Leges  Edwardi  —  (B)  Roman  Law 

—  revival  in  the  eleventhaud  twelfth  centuries — the  Corpus  Juris  Civilis 

—  Bracton  and  the  Roman  Law — (C)  Canon  Law  —  jurisdiction  of  the 
Church  courts  —  theory  of  the  '  English  Canon  Law  ' —  (D)  Charters  and 
similar  documents —  (E)  Official  Practice  — (a)  'Assises  ' —  (b)  Records  — 
Domesday  —  Feet  of  Fines  —  Rolls  of  the  King's  Court  —  Inquest  of 
Knights'  Fees  —  Inquest  of  Tenants  in  Capite — (c)  Text-books — Glan- 

ville  —  Bracton  —  discovery  of  Bractou's  Note  Book 17-25 

CHAPTER  III 

FEUDALISM    AND    LAND    LAW 

Government  and  property  —  chattel  law  and  land  law  —  the  theory  of  tenure 

—  Domesday  Book  and  the  tenants  —  the  Hundred  Rolls  —  Knight  service 

—  Villenage  (serfdom)  —  Socage  —  Frankalmoign  —  the  settlement  of  1164 

—  Moi-tmain  —  incidents  of  tenure  — general  and  local  —  fealty  and  hom- 
age—  suit  of  court  —  service  —  aids  and  reliefs — wardship  and  marriage 

—  inheritance  —  gavelkind  (socage)  and  primogeniture  —  escheat — rights 

and  methods  of  alienation  —  sub-infeudation  —  substitution        .        .        .    26-38 

xi 


xii  CONTENTS 


CHAPTER  IV 

IMPROVED    LEGAL    PROCEDURE 

PAGES 

Rival  jurisdictions — local  moots — Church  courts  —  feudal  courts  —  courts 
merchant  —  growth  of  royal  justice  —  criminal  procedure  —  Assises  of 
Clarendon  and  Northampton — felony  and  misdemeanour  —  forfeiture  for 
felony  —  civil  procedure — 'appeals'  —  restrictions  on  —  gradual  disuser 
of — the  Avrit  of  summons  —  compulsion  —  definition — Glanville's  forms 
of  writ — original  and  judicial  —  failure  of  ol<i  methods  of  trial —  wager  of 
law  —  ordeal  —  battle  —  introduction  of  trial  by  jury  —  a  royal  privilege  — 
the  '  incpiest '  — tiscal  —  judicial  —  the  (irand  Assise  —  the  Petty  Assises  — 
importance  of  seisin  —  the  Writs  of  Entry  —  juries  in  criminal  cases  — 
peine  forte  et  dure  —  the  'petty'  jury  —  Trespass  —  triumph  of  the  King's 
Courts 39-54 

CHAPTER  V 

THE    LAW    OF    CHATTELS 

Land  law  and  chattel  law  —  the  Writ  of  Debt  —  mystery  of  its  nature — no 
'  real '  action  to  recover  chattels  —  '  f ungibility  '  of  money  —  Debt  and 
Detinue  —  recovery  of  the  thing  or  its  value  —  the  obvious  explanation  — 
the  current  explanation  —  succession  to  chattels  —  vagueness  of  early  Eng- 
lish law  —  the  '  reasonable  parts  '  —  the  will  of  chattels  —  influence  of  the 
Church  —  liability  for  deceased's  debts  —  at  first  on  the  heir  —  appearance 
of  the  '  executor  '  —  statutory  recognition  — '  realty  '  to  the  heir,  '  person- 
alty '  to  the  executor  —  appeai-ance  of  contract  —  Glanville's  treatment  — 
torts  still  wanting 55-67 


PERIOD  III 

EDWARD  I  TO  THE  COMMONWEALTH 

(1272-16G0) 

CHAPTER  VI 

THE    TRIUMPH    OF    THE    KING's    COURTS 

Disappearance  of  feudal  jurisdiction  —  over  freemen  —  over  serfs  —  the  popu- 
lar courts  —  the  Statute  of  Gloucester —  the  Church  courts  —  the  Reforma- 
tion and  the  Civil  War  —  the  Courts  Merchant  —  sources  and  authorities 
of  the  Common  I^aw  —  the  theory  of  its  antiquity  —  Acts  of  Parliament  — 
the  Register  of  Writs  —  the  Year  Hooks  —  the  medieval  legend  —  exploded 
by  Maitland  —  the  early  'nominate'  reporters  —  the  Books  of  Entries  — 
text-book  writers  —  Littleton,  Fortescue,  Fitzherbert,  Coke        .        •        .    71-82 

CHAPTER  VII 

NEW    INTERESTS    IN    LAND 

Seisin  —  reversions  —  remainders  —  vested  and  contingent  —  difficulties  with 
seisin  —  entails  —  De  Donis  —  Tultarurn's  Case  —  terms  of  years  —  the  bail 
of  land —i)ossession  and  seisin  —  the  Statute  of  (iloucester — recognition 
of  the  U'ase-holder  as  a  tenant —  Covenants  Act,  1540  —  waste  —  guardians 
—  fermors —  tenants  for  life  —  statutory  provisions — '  equitable  '  waste  — 
incorporeal  hereditaments  —  their  nature  —  Quod  Permittat — Assise  d'Ar- 
rein  Presentment —  Action  of  Case  for  Nuisance  — '  uses'  of  land  —  feof- 
fees to  uses — religious  and  economic  objects  —  protection  of  Chancery  — 
gradual  recognition  of  uses  — the  Statute  of  Uses  —  three  kinds  of  uses 
escape — re-appear  as  '  trusts  ' 83-101 


CONTENTS  xiii 


CHAPTER  VIII 

EIGHTS    AND    METHODS    OF    ALIENATION 

PAGES 

Quia  Emptores — freeholds  —  copyholds  —  terms  of  years  —  reversions  and 
remainders  —  devises  of  land  —  wills  of  uses  —  '  executory  devises  '  —  Stat- 
ute of  Wills — partition  of  co-ownership  —  Mortmain  —  charitable  uses  — 
feoffments  —  beneficial  operation  —  tortious  operation  —  warranty  —  ef- 
fects of —  vouching  to  M'arranty  —  estoppel — lineal  and  collateral  war- 
ranties—  effect  of  De  Don  is  —  Common  Recoveries  —  barring  entails  — 
other  contingent  rights  —  Fines  —  advantages  overCommon  Recoveries  — 
restricti(uis  on  etticacy  of  Fines  —  jileiis  ttfectual  —  proclamations  —  stat- 
ute of  1540  —  grant  of  incorporeal  hereditaments  —  doubt  as  to  reversions 
on  terms  of  years  ^covenants  to  stand  seised  —  bargains  and  sales  — 
future  uses  —  Statutes  of  Uses  and  Inrolments  —  the  Lease  and  Release    102-122 

CHAPTER  IX 

THE  LAW  OF  PERSONAL  PROPERTY 

Choses  in  action  —  mortgages  —  at  first  chattel  interests  —  ditticulties  about 
seisin  —  statute  of  1545  —  mortgages  by  long  terms  —  statutes  merchant 
and  staple  —  bills  of  exchange  —  dangers  of  transport  —  inequalities  of 
exchange  —  money  statutes  of  the  fourteenth  and  fifteetith  centuries  — 
Malynes'  treatise —  monopolies  —  statute  of  1623  —  copyright —  the  licens- 
ing system  —  succession  to  personal  property — statutes  for  and  against 
executors  —  recognition  of  the  administrator  —  Reformation  policy  — 
claim  of  the  executor  to  the  residue 123-131 


CHAPTER  X 

CONTRACT    AND    TORT 

The  Writ  of  Debt  —  limitations  — W^rit  of  Detinue  —  allegation  of  bailment  — 
superseded  in  fourteenth  century  —  Writ  of  Covenant —  '  simple  contract ' 

—  the  Consimilis  Casus  statute  —  the  Action  of  Case  —  in  the  nature  of 
Trespass  —  in  the  nature  of  Deceit — 'valuable  consideration'  —  Doctor 
and  Student  —  establishment  of  the  doctrine  —  the  Action  of  Assumpsit  — 
Case  in  Trover  —  supersedes  Detinue  —  Malicious  Prosecution  —  connec- 
tion with  Conspiracy — Champerty  and  Maintenance  —  Nuisance  — '  abate- 
ment '  —  Defamation —  Slander  —  local  jurisdiction — ecclesiastical  courts 

—  Libel  —  in  the  Star  Chamber — in  the  King's  Bench  —  first  a  criminal 
offence  only  —  award  of  damages  —  statutory  torts  —  harbouring  or  entic- 
ing of  servant 132-148 


CHAPTER  XI 

CRIMINAL    LAW    AND    PROCEDURE 

New  crimes  — development  of  criminal  procedure  —  the  Justices  of  the  Peace 

—  magisterial  and  judicial  authority  —  the  works  of  Fitzherbert  and  Lam- 
bard  —  the  classification  of  crimes  —  felonies  and  misdemeanours  —  indict- 
ment and  summary  prosecution  —  work  of  Justices  in  and  out  of  sessions 

—  general  and  special  sessions  —  were  there  '  petty  sessions '  ?  —  borough 
Justices  —  disappearance  of  'appeals  of  felony'  —  statutes  of  1486  and 
1529 —  '  benefit  of  clergy  '  —  reduced  by  Reformation  statutes  —  privilege 
of  sanctuary  —  abjuring  the  realm  —  statute  of  1530  —  reduction  in  num- 
ber of  sanctuaries —  abolition  of  the  privilege 149-11  iO 


xiv  CONTENTS 


CHAPTER  XII 

CIVIL    PROCEDURE    IN    THE    LATER    MIDDLE    AGES 

PAGES 

Introduction  of  written  pleadings  —  form  of  pleadings  —  '  giving  colour  '  — 
Equity  procedure  —  differences  in  principle  from  Common  Law  procedure 
—  formless  complaint —  inquisitorial  proceedings — no  jury  —  degree  i?t 
persona)!}  —  the  Star  Chamber  proce.-s  —  resemblance  to  Chancery  —  DoC' 
tor  ami  Stmh'ut  on  Chancery  jurisdiction  —  differences  in  procedure  of  the 
three  Common  Law  Courts  —  process  of  the  Common  Bench  —  attachment 
and  distress  —  outlawry  —  Writ  of  Capias — '  ac  etiam  '  clause  —  Bill  of 
Middlesex — the  Latitat  —  Quominus  in  the  Exchequer  —  retaliation  of 
Common  Bench — unity  of  jurisdiction  and  power  of  arrest  —  statute 
of  1444  — '  special  bail '  — action  of  Ejectment —  recovery  of  possession  — 
extension  of  remedy  to  freeholders  —  decay  of  '  real'  actions  —  Statutes 
of  Forcible  Entry —  fictitious  action  of  Ejectment  —  RoUe's  reforms  — 
Doe  V.  Roe  —  reform  scheme  of  the  Little  Parliament  ....         161-182 


PERIOD  IV 

THE  EESTORATION  TO  THE  PRESENT  DAY 

(1660-1911) 

CHAPTER  XIII 

MODERN    AUTHORITIES    AND    THE    LEGAL    PROFESSION 

Parliamentary  sovereignty  —  Acts  of  Parliament  —  Statutes  Revised  —  Orders 
in  Council  —  prerogative  and  parliamentary  —  Rules  and  Orders  of  Court 

—  at  first  prerogative,  then  parliamentary  —  judicial  decisions —  'author- 
ized reports' — new  type  of  anonymous  reports  —  'The  Law  Reports  '  — 
Roman  Law  —  Canon  Law  —  text-books — precedents  —  the  legal  profes- 
sion—  Serjeants— King's  Counsel —  ' utter '  barristers  —  students  —  the 
Inns  of  Court  —  Council  of  Legal  Education  —  General  Council  of  the  Bar 

—  attorneys  and  solicitors  —  scriveners  —  Inns  of  Chancery — decay  and 
extinction  —  the  Society  of  Gentlemen  Practisers  —  the  Law  Society  —  its 
functions 185-206 

CHAPTER  XIV 

REFORM    BY    EQUITY 

Legislative  stagnation  of  the  eighteenth  century  —  Chancery  —  'grace'  — 
'  conscience  '  —  the  statesmen  Chancellors  —  new  type  after  Restoration  — 
'  ecjuity  '  — other  Chant'ery  officers  —  Masters  — ^the  Master  of  the  Rolls  — 
the  literarj' quarrel  of  172<)-7  —  statute  of  17;iO  —  development  of  equitable 
doctrines  — mortgages — 'tacking'  and  'consolidation'  —  specific  per- 
formance of  contracts  —  '  part  performance  '  —  trusts  —  protection  against 
incidents  of  trustee's  estate  —  assimilation  to  rules  of  law  —  provisions  of 
Statute  of  Frauds  —  Married  Women's  Property — Common  Law  rules  — 
'separate  estate'  recognized  by  Equity — 'equity  to  a  settlement'  — 
powers  of  alienation  —  '  restraint  on  anticipation  '  — administration  of  es- 
tates—  failure  of  the  ecclesiastical  tril)uiials  —  resort  to  Common  Law  — 
'retainer'  and  'preference'  —  growth  of  'equitable  assets '  — sujjcrior 
attractions  of  Chancery — gradual  acquisition  of  monopoly  —  new  doctrines 

—  '  marshalling  '  —  '  conversion  '  —  '  satisfaction  '  and  '  performance  '  — 
'ademption' — 'election'  —  Exchequer  jurisdiction  in  Equity — Lord 
Mansfield  and  the  Law  Merchant  —  cl(«e  of  the  reforming  period  of 
Equity 207-236 


CONTENTS  XV 


CHAPTER  XV 

CHANGES    IN    LAND    LAW 

PAGES 

The  Act  of  1660  —  the  Statute  of  Frauds  —  blank  in  the  eighteenth  century  — 
the  reform  period  —  freedom  of  alienation  —  Statute  of  Frauds  —  Wills 
Act —  Real  Property  Act  —  relief  against  forfeiture  for  breach  of  condition 

—  in  Equity  —  under  statute  —  alienation  by  '  limited  owners  '  —  early  pro- 
visions—  settlement  system  of  Civil  War  —  express  powers  —  Act  of  1856 

—  Improvement  of  Land  Acts  — Settled  Estates  Act,  1877  — Settled  Land 
Act,  1882,  and  its  amendments —  Haws  in  the  statutes  —  statutory  powers 
of  mortgagee  and  mortgagor  — Lord  Crauworth's  Act  —  Conveyancing  Act, 
1881  —  liability  of  land  for  payment  of  debts  —  (a)  of  deceased  debtor  — 
(b)  of  living  debtor  —  Inheritance  Act  —  Locke  King's  Acts  —  changes  in 
the  rules  of  contingent  remainders  —  abolition  of  Fines  and  Recoveries  — 
corporeal  hereditaments  made  to  '  lie  in  grant'  —  other  conveyancing  re- 
forms of  the  Real  Property  Act  —  registration  of  deeds  and  title  —  the 
Bedford  Level  —  the  Yorkshire  and  Middlesex  Registries — Lord  West- 
bury 's  Acts  —  Lord  Cairns'  Act  —  Lord  Halsbury's  Act  —  compulsory  regis- 
tration—  diiTerences  of  opinion  as  to  value  of  system  —  registration  of 
charges  —  Acts  of  1888  and  1900  —  enclosure  policy  —  Statutes  of  Merton 
and  Westminster  ll  —  enclosures  of  sixteenth  century  —  enclosures  of 
eighteenth  and  nineteenth  —  private  Acts  —  general  Inclosure  Acts  — 
Commons  Preservation  Society — statutes  restricting  enclosure  and  facili- 
tating dedication 237-265 


CHAPTER  XVI 

NEW  FORMS  OF  PERSONAL  FROFERTr 

Chattels  corporeal  —  intestate  succession  —  Statutes  of  Distribution  —  local 
customs  —  the  Intestates'  Estates  Act,  IStK)  —  wills  of  i^ersonalty  —  Statute 
of  Frauds  —  exclusion  of  testimony  —  Act  of  1752  —  Act  of  1837  —  Lord 
Kingsdown's  Act  —  '  reputed  ownership  '  —  Bills  of  Sale  Acts  — differences 
between  two  classes  of  bills  of  sale — choses  in  action  —  when  is  a  chose 
in  action?  —  earlier  and  later  types  —  copyright  —  early  statutes  about 
printed  books  —  the  Stationers'  Company — action  of  the  Commonwealth 

—  Licensing  Act  of  1662  —  refusal  of  the  Commons  to  renew  —first  Copy- 
right Act  —Do7i(dclson  v.  Beckett  — Pope  v.  Curl  —  Copyright  Act,  1842 — 
international  copyright —  colonial  copyright  —  Act  of  1911  — '  patents '  — 
extension  to  'designs'  —  Act  of  1852  —  trade  marks— Act  of  1875  —  Act 
of  1883  — Trade  Marks  Act,  1905  — consolidating  statute  of  1907  — stock, 
shares,  and  debentures  —  various  forms  of  co-ownership  —  joint  stock 
companies  —  doubt  as  to  '  monopolies  '  —  Sir  John  Barnard's  Act  —  Acts 
of  1825  and  1837  —  introduction  of  limited  liability  —  legislation  of  1844-5 

—  Companies  Act,  1862,  and  amendments  —  debentures  and  debenture 
stock  —  legislation  of  1890  —  consolidating  Act  of  liX)8  —  ships  —  Naviga- 
tion Acts— the  registry  system  —  the  Merchant  Shipping  Acts  —  Act  of 
1894  —  transfer  of  choses  in  action  —  evasion  of  common  law  rule  —  atti- 
tude of  equity —  doubt  as  to  valuable  consideration  —  overruled  by  Lord 
Hardwicke  —  Judicature  Act,  1873  —  statutory  forms  of  transfer       .         266-297 


CHAPTER  XVII 

CONTRACT    AND    TORT    IN    MODERN    LAW 

Slacle's  Case  and  the  theory  of  simple  contract  —  the  Statute  of  Frauds  —  bail- 
ments and  consideration  —  action  for  '  breach  of  promise '  — contracts  of 
infants  —  Act  of  1874  —  married  women  —  Acts  of  1870,  1874,  1882,  and 
1893 — torts  —  Deceit  —  Defamation  —  Fox's  Libel  Act  —  Parliamentary 
Papers  Act,  Lord  Campbell's  Act,  Newspaper  Libel  Act,  and  Law  of  Libel 
Amendment  Act — Slander  of  Women  Act  —  Negligence  —  labour  organ- 
izations and  the  law  —  history  of  the  question  —  the  Statutes  of  Labourers 
—  Elizabethan  amendments  —  the  industrial  revolution  of  the  eighteenth 


xvi  CONTEXTS 


century  —  appearance  of  Trade  Unions —  repeal  of  the  Combination  Laws 

—  doctrine  of  '  common  employment '  —  Employers'  Liability  Act  — '  crim- 
inal conspiracy'  —  Master  and  Servant  Act — Trade  Union  Acts  —  Con- 
spiracy and  Protection  of  Property  Act — 'civil  conspiracy'  —  Mogul 
Slecnnship  Case  and  Teinpertoi)  v.  B'lfSfll  —  Tarl'  Vale  Caisfi  andtbe  Trade 
Disputes  Act — recent  decisions — Workmen's  Compensation  Acts — Old 

Age  Pensions  and  Insurance  Acts 298-331 

CHAPTER  XVIII 

REFORM    IN    THE    CRIMIXAL    LAW 

Habeas  Corpus  —  history  of  —  Act  of  1079  —  criminal  informations  —  Treason 
Act  —  transportation  —  Stipendiary  Magistrates  —  penal  servitude  — 
Peel's  reforms  in  criminal  law  —  Trials  for  Felony  Act — Sir  John  Jervis' 
Acts  —  consolidating  statutes  of  IfSfJl  —  Criminal  Procedure  Act  —  aboli- 
tion of  public  executions  —  establishment  of  Public  Prosecutor  —  Criminal 
Evidence  Act — Poor  Prisoners'  Defence  Act  —  Court  of  Criminal  Ap- 
peal              333-345 

CHAPTER  XIX 

MODERN    CIVIL    PROCEDURE 

•Acetiams'  again  —  proceedings  in  English  —  Uniformity  of  Process  Act- 
Civil  Procedure  Act  —  Rules  of  Court  thereunder  —  abolition  of  'real' 
actions  —  period  of  limitation  for  recovery  of  land  —  Prescription  Act  — 
not  a  code  — '  common  law  '  prescription  —  Chancery  reform  —  Contempt 
of  Court  Act  —  transfer  of  Equity  jurisdiction  from  the  Exchequer  —  con- 
vergent statutes  for  common  law  and  equity  procedure  —  Common  Law 
Procedure  Acts  —  Common  Law  Courts  Act — Chancery  Amendment  Acts 

—  the  Judicature  Commission  —  five  recommendations — (1)  consolidation 
of  superior  tribunals  —  question  of  the  House  of  Lords  and  the  Judicial 
Committee — crisis  of  1874  —  restoration  of  these  tribunals  —  conflicting 
rules  of  law — distinction  between  law  and  equity  not  abolished — (2)  short- 
ening of  pleadings — (3)  partial  abolition  of  the  jury  system — (4)  oral 
evidence  —  (5)  abolition  of  '  Terms  '  —  proposals  for  re-arrangement  of  the 
circuit  system  —  establishment  of  County  Courts  —  enlargement  of  juris- 
diction—  history  of  bankruptcy  procedure 346-379 

Index 381 


TABLE   OF   STATUTES 


1215 

PAGE 

Magna  Carta 33,  34,  35,  43,  48,  51,  61,  63,  91 

1225 

9  Hen.  Ill  c.  32  (Magna  Carta) 

.       103 

1235-6 

20  Hen.  Ill  (Statute  of  Merton) 

22, 

40,  201,  262 

1258 

Provisions  of  Oxford '       . 

22 

1267 

52  Hen.  Ill  (Statute  of  iMarlborough)  .... 

22 

c.  17 

34,  91,  174 

c.  22 

51 

c.  23 

.  91,  92 

C.  29              ....;.              . 

51 

1275 

3  Edw.  I,  St.  I.  (Statute  of  Westminster  the  First)    . 

76 

c.  12 

51 

c.  15 

.      333 

c.  19 

62 

c.  21 

91 

c.  24         .         .         .        .         . 

.       136 

c.  25 

.       143 

c.  34 

•       146 

c.  36 

34 

c.  40 

85,  110 

1276 

4  Edw.  I,  St.  Ill,  c.  6  (Statute  of  Bigamy) 

.       1.09 

1278 

6  Edw,  I  (Statute  of  Gloucester)         .... 

.  72,  76 

c.  3 

12,  116,  117 

c.  5 

91 

c.  8 

73,  201 

c.  9 

. 

.       154 

c.  11 

90,  91,  135 

1279 

7  Edw.  I,  St.  II  (Mortmain) 

31,  105 

1283 

11  Edw.  I  (Statute  of  Acton  Burnel)    .... 

.       126 

1285 

13  Edw.  I  (Statute  of  Westminster  tlie  Second)  . 

76,  172 

c.  1 84, 

87, 

112,  117,  126 

c.  3 

.       113 

c.  4 

.       113 

c.  11 

.  '      . 

.       133 

c.  12 

.       155 

c.  18 

95,  ] 

126,  165,  250 

c.  19 

64,  131 

c.  23 

64,  131 

c.  24 

.  45,  77,  136 

c.  25 

94 

c.  41 

.       105 

c.  46 

.       262 

c.  49 

.       143 

St.  II  (Statute  of  Winchester) 

76 

St.  Ill  {Cira 

imspecte  Af/atis) 

.  74,  76 

XVlll 


TABLE   OF  STATUTES 


1  _.tO        18  Edw.  I,  St.  I  (Quia  Emptores) 
c.  1    -     . 

c.  3 

Vm        20  Edw.  I,  St.  II  (Waste)     . 
l.".)2        20  Edw.  I,  St.  I  (Vouchers) 
1_99        27  Edw.  I,  St.  I  {Finlb^is  Lrvatis) 

St.  II  (Liberties) 
1  .  )0        28  Edw.  I,  St.  I  (Articnli  super  Cartas) 
28  Edw.  I,  St.  II  (Appeals)  . 
28  Edw.  I,  St.  Ill  (Conspiracy)    . 
l;:35        33  Edw.  I,  St.  II  (Conspiracy)     . 
St.  Ill  (Champerty)   . 
in06        34  Edw.  I,  St.  Ill  (Mortmain)      . 
1:315  9  Edw.  II,  St.  I  {Articnli  Cleri) 

c.  4  .... 

c.  12 
c.  15 
1323        17  Edw.  II,  St.  I  (Homage  and  Fealty) 

St.  II,  c.  7  (Pr(erogativa  Begis) 
1327  1  Edw.  Ill,  St.  II,  c.  12  (Tenants  in  capite) 

c.  11  (Prohibition) 
1330  4  Edw.  Ill,  c.  7  (Executors) 

1335  9  Edw.  Ill,  St.  II,  c.  7  (Money) 

1344        18  Edw.  Ill,  St.  II,  c.  6  (Coinage) 

St.  Ill,  c.  3  (Mortmain) 
l:;49        23  Edw.  Ill  (Labourers) 
1350        25  Edw.  Ill,  St.  I  (Labourers)      . 

1352  25  Edw.  Ill,  St.  V 

c.  2  (Treason) 

c.  3  (Jury)      . 

c.  5  (Executors) 

c.  11  (Aids)    . 

c.  17  (Arrest  on  Mesne  Process) 

1353  27  Edw.  Ill,  St.  II  (Staple) 

c.  9 

c.  14 

1360        34  Edw.  Ill,  c.  1  (Justices  of  the  Peace)     . 

c.  1  (7)    

cc.  9-11  (Labourers) 

c.  16  (Continual  Claim)  . 
].;02  36  Edw.  in,  St.  I,  c.  15  (Pleadings)  . 
1  ;76        60  &  51  Edw.  Ill,  c.  0  (Uses) 

1377  1  Kic.  II,  c.  !)  (Maintenance) 

c.  12 

1378  2  Ric.  II,  St.  I,  c.  5  (ScnndaJum  Mnrjnatum) 

1379  3  Ric.  II,  c.  3  (2)  (Bills  of  Exchange) 
1381  5  Ric.  II,  St.  I,  c.  4  (Forcible  Entry) 

c.  8 

1383  7  Ric.  II,  c.  12  (Uses)         .... 

]  585  9  Ric.  II,  c.  3  (Recoveries) 

1  ;88         VA  Ric.  II,  c.  11  {tScandalum  Magnatum)     . 


PAGE 

.  102 
102,  109,  238 
105 
91 
.  110 
.  117 
105,  201 
34 
155,  321 
.  144 
142,  143,  321 
.  143 
.   106 


.  145 
.  159 
.  159 
32 
.  103 
.  103 
143,  145 
130,  301 
127 
.  127 
.  .106 
147,  313,  314 
147,  150,  314 


149 
52 

130 
34 

172 


.  126 
.  128 
.  150 
.  152 
147,  313 
.  117 
.  161 
96 


.  133 
.  146 
128 
,  274 
106,  175 
97 


140 


TABLE  OF  STATUTES 


x.:z 


14  Ric. 

15  Ric. 


II,  c. 
II,  c. 


16  Ric. 

17  Ric. 

1  Hen. 

2  Hen. 

4  Hen. 

5  Hen. 

11  Hen. 

13  Hen. 

2  Hen. 

8  Hen. 
11  Hen. 
15  Hen. 
23  Hen. 

17  Edw. 


1  Ric.  Ill,  c 


3  Hen. 

4  Hen. 


11  Hen. 

19  Hen. 

6  Hen. 
21  Hen. 


22  Hen. 

23  Hen. 


25  Hen. 


27  Hen, 


2  (Money) 

2  (Forcible  Entry)  . 

c.  5  (Mortmain) 

c.  12  (Private  Courts) 
[I,  c.  2  (Private  Courts)   . 
[I,  c.  6  (Cliancery)   . 
IV,  c.  14  (Appeals) 
IV,  c.  11  (Case) 
IV,  c.  18  (Attorneys) 
IV,  cc.  4,  5  (Maiming)     . 

c.  8  (Debt) 
IV,  c.  8  (Coinage)  . 

IV,  c.  7  (Riots) 

V,  St.  I,  c.  7  (Heresies)  . 
St.  II,  c.  1  (Juries)     . 

VI,  c.  9  (Forcible  Entry) 
VI,  c.  5  (Uses) 
VI,  c.  4  (Chancery) 

VI,  c.  9  (Bail) 
IV,  c.  1  (Money)     . 

c.  4  (Tile  making)  . 
1  (Trusts) 
c.  3  (Bail) 

7  (Proclamations) 

9  (Customs) 

1  (Appeals) 

4  (Uses) 
17  (Uses)     . 

c.  24  (Proclamations) 
c.  20  (Warranty)    . 
c.  22  (Labourers)    . 

VII,  c.  9  (Case)      . 
c.  15  (Uses)     . 

3  (Labourers) 

5  (Church  Courts) 
7  (Embezzlement) 

11  (Restitution) 
15  (Common  Recoveries) 
36  (Common  Recoveries) 

VIII,  c.  14  (Sanctuary)    . 
VIII,  c.  1  (Benefit  of  Clergy) 

c.  6  (Recognizances) 

c.  9  (Wrongful  suit) 

c.  10  (Gilds^)    . 
VIII,  c.  3  (Unnatural  Offences) 

c.  15  (Printing) 

c.  19  (Canon  Law)  . 
VIII,  c.  10  (Statute  of  Uses) 

c.  24  (Justices  of  the  Peace) 

c   27  ) 
■        [  (Court  of  Augmentations) 


VII, 
VII, 


VII, 


VIII,  c. 
VIII,  c. 

c. 

c. 

c. 

c. 


.       1;  ■!. 

175,  2,  t 

97,  99,  1(  'Ji 


1<  - 
irh 
1-  ." 
2(  I 
li  • 
1L> 
li  i 

If ; 

•;  I 

(    ; 

106,  108,  11  :> 

97,  VA 

ICL- 

173,  34  ) 

lii 

221 
15  > 

11  r 

27'; 

155,  20 1 

10! 

116,  11  ; 
112,  ii:? 
313,  31  1 

313,  314 

130,  2(i7 

1-1  > 

l:3r> 

174 

90 

15') 

74,  157 

I2r; 

147 

lOG 

14t) 

27(; 

19{> 

99,  104,  119,  253 
154 

237 


XX 


TABLE    OF   STATUTES 


153G 

27  Hen.  VIII,  c. 

16  (Inrolments) 

28  Hen.  VIII,  c. 

1  (Henelit  of  Clergy) 

1539 

31  Hen.  VIII,  c. 

1  (Partition) 

1540 

32  Hen.  VIII,  c. 

1  (Wills)     .         .         .         . 

c. 

2  (Prescription) 

c. 

9  (Maintenance) 

c. 

12  (Sanctuaries) 

c. 

28  (Leases) 

c. 

31  (Recoveries)  . 

c. 

34  (Covenants)  . 

c. 

30  (Fines)  .         .         .         . 

c. 

40  (Court  of  Wards)  . 

1541 

33  Hen.  VIII,  c. 

1  (Embezzlement) 

c. 

6  (Shooting) 

c. 

8  (Witchcraft)    . 

c. 

10  (Justices) 

c. 

23  (Juries) 

1542 

34  &  35  Hen.  A^II,  c.  4  (Bankruptcy) 

c. 

5  (Wills)      .         .         .         . 

c. 

20  (Fines)    . 

154:1 

85  Hen.  VIII,  c 

10  (Canon  Law) 

1645 

37  Hen.  VIII,  c 

7  (Justices) 

c. 

9  (Usury)     .         .         .         . 

1547 

1  Edw.  VI,  c. 

12  (Treasons) 

1548 

2  &  3  Edw.  VI, 

c.  15  (Conspiracy) 

1552 

5  &  G  Edw.  VI 

c.  10  (Robbery) 

c. 

11  (Forfeiture)    . 

7  Edw.  VI,  c.  2  (Court  of  Augmentations) 

1553 

7  Edw.  VI,  c.  7 

(.\ssise  of  Fuel) 

1  Mary,  St.  II. 

c.  5  (Limitation) 

c 

.  10  (Court  of  Augmentatioi 

1554 

1  &  2  Ph.  &  M. 

c.  3  (Sedition)     . 

c 

.  13  (Bail)    . 

1555 

2  &  3  Ph.  &  M. 

c.  10  (Bail) 

c 

.  10  (Watermen) 

1558 

1  Eliz.  c.  6  (Sedition) 

1562 

5  Eliz.  c.  4  (Apprentice.s)    . 

c.  14  (E 

orgery) 

c.  10  (Witchcraft)    . 

c.  18  (L 

ord  Keeper) 

c.  20  (I 

irolments)    . 

1505 

8  Eliz.  c.  4  (He 

nefit  of  Clergy) 

1570-1 

13  Eliz.  c.  5  (Fraud)      . 

c.  7  (H; 

nkruptcy)    . 

c.  8  (Usury)      . 

1572 

14  Eliz.  c.  8  (Recoveries) 

1570 

18  Eliz.  c.  7  (Re 

nefit  of  Clergy) 

1581 

23  Eliz.  c.  1  (Treason) 
c.  3  (Fines) 

1585 

27  Eliz.  c.  0  (Fines) 

1589 

31  Eliz.  c.  2  (Fines) 

99, 


104,  2 


PAGE 

,            , 

120 

.         74, 

157 

105 

227,  240, 

209 

.  • 

353 

170, 

241 

159 

117,  241, 

243 

115 

90, 

103 

117 

238 

,                  , 

149 

,                   , 

152 

. 

149 

154 

330 

75 

374 

105 

222 

114 

106 

154 

125 

149 

157 

315 

157 

244 

237 

152 

353 

237 

146 

150 

150 

152 

146 

314 

149 

149 

208 

121 

157 

.       271 

272 

.         76 

374 

125 

114 

74, 

157 

. 

149 

,         . 

117 

. 

173 

,         , 

117 

TABLE   OF  STATUTES 


XXI 


ue  Vie) 


129, 


34 


1597        39  Eliz.  c.  3  (Poor  Law) 

c.  9  (Abduction) 
1601        43  Eliz.  c.  4  (Charities) 

c.  7  (Vagabonds) 
1603-4      1  Jac.  I,  c.  11  (Bigamy)      . 

c.  12  (Witchcraft)    . 

c.  15  (Bankruptcy)  . 

c.  26  (Statute  Law  Revision) 
1605  3  Jac.  I,  c.  7  (Attorneys)     . 

1623        21  Jac.  I,  c.  3  (Monopolies) 

0.  10  (Bankruptcy) 

c.  15  (Forcible  Entry) 

c.  16  (Limitation)     . 

c.  19  (Bankruptcy)  . 

c.  28  (Sanctuary) 
1627-8      3  Car.  I,  c.  1  (Petition  of  Right) 
1640        16  Car.  I,  c.  10  {Habeas  Corpus) 

1660  12  Car.  II,  c.  18  (Navigation) 

c.  24  (Tenures) 

1661  13  Car.  II,  St.  I,  cc.  2,  12  (Church  Courts) 

1662  St.  II,  c.  2  (Arrest  on  Mesne  Process) 

c.  24  (Bankruptcy) 
c.  33  (Licensing)  . 

1663  15  Car.  II,  c.  xvii  (Bedford  Level) 
1667         18  &  19  Car.  II,  c.  6  (or  11)  (Cestui  Q 
1670        22  &  23  Car.  II,  c.  10  (Distribution) 
1677        29  Car.  II,  c.  3  (Statute  of  Frauds) 

239 
1679        31  Car.  II,  c,  2  (Habeas  Corpus) 
1685  1  Jac.  II,  c.  17  (Distribution) 

1688  1  W.  &  M.  St.  I,  c.  21  (Lords  Commissioners) 

1689  1  W.  &  M.  St.  11,  c.  2  (Bill  of  Rights) 

1691  3  W.  &  xM.  c.  14  (Fraudulent  Devises) 

1692  4  W.  &  M.  c.  2  (Wills)        .... 
4  &  5  W.  &  M.  c.  18  (Criminal  Information) 

c.  20  (Judgments) 

1694  5  &  6  W.  &  M.  c.  20  (Bank  of  England)      . 

1695  7  &  8  W.  Ill,  c.  3  (Treason) 

c.  22  (Ships) 

1696  8  &  9  W.  Ill,  c.  11  (Bond) 

c.  38  (Wills)   .... 
1700        12  &  13  W.  Ill,  c.  2  (Act  of  Settlement) 
1703  2  &  3  Anne,  c.  4  (Land  Registry) 

c.  5  (Wills)      .... 

1705  4  &  5  Anne,  c.  3  (or  16)  (Amendment  of  the  Law) 

c.  4  (or  17)  (Bankruptcy) 

1706  5  Anne,  c.  9  (or  6)  (Benefit  of  Clergy) 

1707  6  Anne,  c.  37  (or  3)  (East  India  Company) 

c.  72  (or  18)  (Cestui  Que  Vie) 
c.  62  (or  35)  (Land  Registry) 

1708  7  Anne,  c.  12  (Diplomatic  Privileges) 


153 

157 

106 

153 

149 

149 

75,  374 

160,  189 

.       201 

207,  278,  283,  287 

75 

175 

207,  351,  353 

.       271 

.       160 

207,  334 

207,  335 

207,  292 

83,  207,  237,  238,  240 

74 

207,  333,  347 

.       376 

129,  277 

.       255 

.       230 

131,  207,  267,  268 

105,  119,  207,  217,  221,  228, 

254,  261,  269,  295,  299,  303,  308 

207,  333,  335 

131,  207,  268 

211 

207 

207,  227,  240 

.       268 

.       336 

.       261 

.       287 

207,  336 

.       293 

.       207 

.       268 

.       208 

180,  256 

.       268 

112,  179,  207,  270 

375 

157 

287 

239 

256 

207 


XXll 


TABLE  OF  STATUTES 


1708 
1709 

1717 
1718 
1719 
1724 
1725 
1729 
1730 
1731 
1732 

1733 

1735 

1737 
1750 
1752 
1753 
1707 
1772 
1773 
1774 
1779 
178(3 
1787 
1792 

1794 
1799 
1800 
1801 

1803 
1807 
1809 
1813 
1814 
1815 
1816 
1819 
1823 
1824 

1825 


1827 


Anne,  c.  20  (Land  Registry)    . 

Anne,  c.  18  (or  14)  (Landlord  and  Tenant) 

c.  21  (or  19)  (Copyright) 
Geo.  I,  c.  11  (Transportation) 
Geo.  I,  c.  19  (Soutli  Sea  Company) 
Geo.  I,  c.  18  (Royal  Exchange  Assurance) 
Geo.  I,  c.  18  (Wills) 
Geo.  I,  c.  29  (Arrest  on  Mesne  Process) 
Geo.  II,  c.  23  (Attorneys) 
Geo.  II,  c.  28  (Landlord  and  Tenant) 
Geo.  II,  c.  26  (Proceedings  in  English) 
Geo,  II,  0.  27  (Small  Debts)     . 

c.  30  (Bankruptcy) 
Geo.  II,  c.  8  (Stock  Jobbing)  . 
Geo.  II,  c.  6  (Land  Registry)  . 
Geo.  II,  c.  36  (Charitable  Uses) 
Geo.  II,  c.  19  (Distress  for  Rent)     . 
Geo.  II,  c.  26  (Attorneys) 
Geo.  II,  c.  6  (Witnesses) 
Geo.  II,  c.  33  (Marriages) 
Geo.  Ill,  c.  48  (Companies) 
Geo.  Ill,  c.  20  (Pleading) 
Geo.  Ill,  c.  26  (Ships)      . 
Geo.  Ill,  c.  78  (Life  Assurance) 
Geo.  Ill,  c.  70  (Arrest  on  Mesne  Process) 
Geo.  Ill,  c.  00  (Ships)      . 
Geo.  Ill,  c.  38  (Designs) 
Geo.  Ill,  c.  53  (Stipendiary  Magistrates) 

c.  60  (Libel)    . 
Geo.  Ill,  c.  23  (Designs) 
Geo.  Ill,  c.  81  (Conspiracy)     . 
&  40  Geo.  Ill,  c.  106  (Conspiracy)  . 
Geo.  Ill,  c.  107  (15ooks)  . 

c.  109  (Inclosures) 
Geo.  Ill,  c.  46  (Payment  into  Court) 
Geo.  Ill,  St.  II,  c.  74  (Debts) 
Geo.  Ill,  c.  115  (Insolvent  Debtors) 
Geo.  Ill,  c.  24  (Vice-chancellor)      . 
Geo.  Ill,  c.  156  (Copyright)     . 
Geo.  Ill,  c.  192  (Will)      . 
Geo.  Ill,  c.  100  {Habeas  Corpus)     . 
Geo.  Ill,  c.  46  (Trial  by  Battle) 
Geo.  IV,  c.  41  (Shipping) 
Geo.  IV,  c.  95  (Conspiracy)     . 

c.  26  (Bankruptcy) 
Geo.  IV,  c.  91  (Companies) 

c.  105  (Customs)     . 

c.  110  (Sliipjjjng)    . 

c.  129  (Con.spiracy) 
&  8  Geo.  IV,  c.  28  (Benefit  of  Clergy) 

c.  29  (Larceny) 


PAGE 

180,  256 
133,  207 
130,  278 
337 
287 
287 
268 
348 
204 
207,  240,  242 
348 
348 
375 
288 
2.56 
207 
207,  240 
204 
270 
303 
288 
51 
293 
207,  311 
348 
293 
283 
337 
309 
283 
315 
315 
279 
264 
348 
2.50 
370 
214 
279 
241 
335 
55,  156 
293 
316 
375 
288 
293 
293 
317 
157,  338 
.   339 


43, 


TABLE  OF  STATUTES 


XXlll 


1827 
1828 

1829 
1830 


1831 
1832 


1833 


1834 


1835 

1836 
1837 


1838 

1839 

1840 
1841 
1842 


1843 


1844 


7  &  8  Geo.  IV,  c.  30  (Malicious  Injuries)    . 
9  Geo.  IV,  c.  14  (Statute  of  Frauds  Amendment) 
c.  31  (Offences  against  the  Person) 

10  Geo.  IV,  c.  44  (Police)      .... 

11  Geo.  IV  and  1  Will.  IV,  c.  36  (Chancery) 

c.  40  (Debts)  . 
c.  6(3  (Forgery) 
c.  70  (Exchequer  Chamber) 

1  &  2  Will.  IV,  c.  56  (Bankruptcy)     . 

2  &  3  Will.  IV,  c.  34  (Coinage  Offences) 

0.  39  (Uniformity  of  Process) 
c.  71  (Prescription) 

3  &  4  Will.  IV,  c.  15  (Copyright) 

c.  27  (Limitation)  . 

c.  42  (Civil  Procedure)   .         .         .         142, 

c.  74  (Fines  and  Recoveries) 

c.  94  (Chancery)     . 

c.  104  (Debts) 

c.  100  (Inheritance) 

4  &  5  Will.  IV,  c.  23  (Escheat  of  Trust  Property) 

c.  36  (Central  Criminal  Court) 
c.  94  (Companies) 

5  &  6  Will.  IV,  c.  76  (Municipal  Corporations) 

c.  83  (Patents)     . 

6  &  7  Will.  IV,  c.  114  (Trials  for  Felony) 

7  Wm.  IV  &  1  Vict.  c.  26  (Wills) 

c.  73  (Companies) 

c.  84  (Forgery)     . 

c.  85  (Offences  against  the  Person) 

c.  86  (Burglary)  . 

c.  87  (Robbery)    . 

c.  88  (Piracy) 

c.  89  (Arson) 

c.  90  (Transportation) 

c.  91  (Capital  Punishment) 

1  &  2  Vict.  c.  59  (Copyright) 

c.  110  (Judgments)  ....         250, 

2  &  3  Vict.  c.  17  (Designs) 

c.  93  (Police) 

3  &  4  Vict.  c.  9  (Parliamentary  Papers) 
5  Vict.  c.  5  (Chancery) 

5  &  6  Vict.  c.  45  (Copyright)      . 

c.  100  (Designs) 

c.  103  (Chancery)     . 

c.  122  (Bankruptcy) 

6  &  7  Vict.  c.  65  (Designs) 

c.  73  (Solicitors) 
0.  85  (Evidence) 
c.  96  (Libel) 

7  &  8  Vict.  c.  12  (Copyright)       . 

c.  76  (Conveyancing) 


PAGE 

.  .339 
299,  308,  355 
339 
339 
356 
131 
339 
169 
376 
339 
349,  350,  351 
.  355 
.  280 
55,  352 
189,  307,  351 
179,  243,  254 
214 
2.50 
251 
219 
370 
288 
338 
284 
389 
103,  241,  270 
288 
339 
339 
339 
339 
339 
339 
339 
339 
280 
261,  348,  351 
284 
3.39 
309 
357 
i79-281 
284 
357 
376 
284 
201,  205 
313 
310 
280 
2.53,  254 


XXIV 


TABLE   OF  STATUTES 


PAGE 

1844 

7  &8  Vict.  c.  85  (Railways) 289 

c.  110  (Companies)   . 

289 

c.  Ill  (Companies)  . 

.       289 

c.  113  (Banks) 

289 

1845 

8  &  9  Vict.  c.  10  (Companies  Clavises) 
c.  20  (Railways  Clauses) 
c.  93  (Copyright)      . 

.       289 

.       289 
.       2S1 

c.  101)  (Real  Property)      . 

103, 

108,  1 

22,  241,  253 

c.  110  (Merchant  Shipping) 

.       294 

c.  118  (Inclosures)     . 

.       264 

1846 

9  &  10  Vict.  c.  62  (I)eodands)       .... 
c.  93  (Fatal  Accidents)     . 
c.  95  (County  Courts  Act) 

.       181 
.       307 
.       358 

1847 

10  &  11  Vict.  c.  95  (Colonial  Copyright) 
0.  102  (Bankruptcy) 

.       281 
.       376 

1848 

11  &  12  Vict.  c.  42  (Indictable  Offences) 

c.  43  (Summary  Jurisdiction) 
c.  44  (Justices'  Protection) 

.       340 
.       340 
.       341 

1849 

12  &  13  Vict.  c.  106  (Bankruptcy) 

.        .      377 

1850 

13  &  14  Vict.  c.  16  (Rules  of  Court) 
c.  35  (Chancery) 

.       190 
.       190 

1851 

14  &  15  Vict.  c.  83  (Chancery)      . 
c.  99  (Evidence)      . 

.       214 
343,  300 

1852 

15  &  16  Vict.  c.  24  (Will)      . 

.       271 

0.  73  (Common  Law  Courts)  . 

.       359 

c.  76  (Common  Law  Procedure)     . 

] 

90,  242,  358 

c.  80  (Chancery)      . 

.       361 

c.  83  (Patents) 

.       284 

c.  86  (Chancery) 

.       362 

c.  87  (Chancery) 

.       363 

1853 

16  &  17  Vict.  c.  22  (Evidence) 
c.  78  (Oaths)    . 
c.  83  (Evidence)       . 
c.  98  (Chancery)      . 
c.  99  (Penal  Servitude) 

.      363 

.      363 
.      344 

.       363 
.       338 

1855 

17  &  18  Vict.  c.  36  (Bills  of  Sale; 
c.  113  (Mortgage)    . 

.       272 
.       252 

c.  120  (Merchant  Shipping)     . 

294 

c.  12-')  (Common  Law  Procedure) 

190,  360 

1855 

18  &  19  Vict.  c.  41  (Church  Courts)      . 

c.  43  (Infants'  Settlements)     . 

145,  311 

.       3;)4 

1856 

19  &  20  Vict.  c.  47  (Companies)  .... 
c.  69  (Police)  .... 
c.  94  (Intestacy) 

c.  97  (Mercantile  Law  Amendment 
c.  120  (Settled  Estates)  . 

) 

.       290 
.       3)9 
.       269 

.     2;.9 

244,  245 

1857 

20  &  21  Vict.  c.  3  (Penal  Servitude)      . 
c.  14  (Companies)   . 

.       338 

.     2;n 

1858 

21  &  22  Vict.  c.  27  (Chancery)      . 
c.  91  (Banks) 

190,  3;)3 
291 

1859 

22  &  23  Vict.  c.  35  (Law  of  Property  1 

^mendmen 

t) 

242,  251 

TABLE   OF  STATUTES 


XXV 


1860 

23  &  24  Vict.  c.  126  (Common  Law  Procedure)    . 

PAGE 

.       361 

c.  145  (Powers  of  Mortgagees) 

.       249 

1861 

24  &  25  Vict.  c.  96  (Larceny) 

.       341 

c.  97  (Malicious  Damage)        .... 

.       341 

c.  98  (Forgery) 

.       341 

c.  99  (Coinage  Offences)          .... 

.       341 

c.  100  (Offences  against  the  Person) 

322,  341 

c.  114  (Wills) 

.       271 

c.  121  (Domicile) 

.       271 

c.  134  (Bankruptcy) 

.       877 

1862 

25  &  26  Vict.  c.  53  (Land  Registry) 

.       257 

c.  67  (Declaration  of  Title)     .... 

.       257 

c.  89  (Comxjanies) 

.       290 

1864 

27  &  28  Vict.  c.  112  (Judgments) 

250,  261 

c.  114  (Improvement  of  Land) 

.       246 

1865 

28  &  29  Vict.  c.  18  (Criminal  Procedure)      .... 

.       342 

c.  72  (Wills  of  Seamen)            .... 

.       270 

c.  78  (Mortgage  Debentures)  .... 

.       291 

1866 

29  &  30  Vict.  c.  122  (Metropolitan  Commons)      . 

.       264 

1867 

30  &  31  Vict.  c.  8  (Trade  Unions) 

.       321 

c.  35  (Criminal  Law  Amendment) 

.       340 

c.  69  (Mortgages) 

.       252 

c.  74  (Trade  Unions) 

.       321 

c.  141  (Master  and  Servant)    .         .         .        321, 

322,  323 

1868 

31  &  32  Vict.  c.  24  (Capital  Punishment)     .... 

.       342 

c.  71  (County  Courts  Admiralty  Jurisdiction) 

.       373 

1869 

32  &  33  Vict.  c.  46  (Debts) 

231,  250 

c.  61  (Trade  Unions) 

.       322 

c.  62  (Debtors) 

.       348 

c.  68  (Evidence) 

.       304 

c.  71  (Bankruptcy)           ....        272, 

377,  378 

1870 

33  &  34  Vict.  c.  20  (Mortgages) 

.       291 

c.  23  (Forfeiture)     ...... 

.       343 

c.  93  (Married  Women's  Property) 

.       305 

1871 

34  &  35  Vict.  c.  31  (Trade  Unions)       .         .         .         322,  328, 

329,  330 

c.  32  (Criminal  Law) 

.       330 

1873 

36  &  37  Vict.  c.  60  (Judicature)  .         190,  199,  275,  297,  365-7 

1,  373-80 

1874 

27  &  38  Vict.  c.  50  (Married  Women's  Property) 

306 

c.  57  (Limitation) 

.       354 

c.  62  (Infants'  Relief) 

.       304 

c.  78  (Vendor  and  Purchaser) 

216,  255 

c.  83  (Judicature) 

.       366 

1875 

38  &  39  Vict.  c.  77  (Judicature) 190 

365-371 

c.  86  (Conspiracy  and  Protection  of  Property) 

321,  330 

c.  87  (Land  Transfer)      .         ,         .         .216, 

258,  259 

c.  91  (Trade  Marks) 

.       285 

1876 

39  &  40  Vict.  c.  22  (Trade  Unions) 

.   .  328 

c.  56  (Commons) 

.       264 

c.  59  (Appellate  Jurisdiction) 

190,  367 

1877 

40  &  41  Vict.  c.  18  (Settled  Estates) 

.       246 

c.  25  (Solicitors) 

.       205 

XXVI 


TABLE  OF  STATUTES 


1877 

40  &  41  Vict. 

c. 

33 

Contingent  Remainders) 

c. 

34 

(Mortgaiies)     .... 

1878 

41  &  42  Vict 

c 

31 

(Bills'^of  Sale) 

1879 

42  &  43  Vict 

c 

22 

(Public  Prosecutor) 

c. 

49 

Sununary  Jurisdiction) 

c. 

50 

^Civil  Procedure  Acts  Repeal) 

1880 

43  &  44  Vict. 

c. 

42  ( 

Employers'  Liability)    . 

1881 

44  &  45  Vict. 

c. 

41 

Conveyancing) 

0. 

60  ( 

Xevv.spaper  Libels) 

c. 

68  ( 

Judicature)    .... 

1882 

45  &  40  Vict. 

c. 

38 

[Settled  Land) 

c. 

4.3  ( 

Bills  of  Sale) 

c. 

To  ( 

Married  Women's  Property) 

1883 

46  &  47  Vict 

c. 

52 

(Bankruptcy)          .         .         272 

c. 

57 

Patents)         .... 

1884 

47  &  48  Vict. 

c. 

54 

Yorkshire  Registries)    . 

c. 

71  ( 

Intestates  Estates) 

1885 

48  &  49  Vict. 

c. 

63 

Patents)         .... 

1886 

49  &  50  Vict 

c 

33 

International  Copyright) 

c 

37 

^Patents)         .... 

1888 

51  &  52  Vict. 

c. 

43 

County  Courts) 

c. 

50 

Patents)         .... 

c. 

51 

Land  Charges) 

c. 

59 

Limitation)    .         .         ,         . 

c. 

64  ( 

Law  of  Libel  Amendment)    . 

c. 

65  ( 

Solicitors)      .... 

1890 

53  &  54  Vict. 

c. 

20  ( 

Intestacy)      .... 

c. 

62  ( 

Company  Formation)    . 

c. 

63  ( 

Winding  Up) 

c. 

64 

Directors'  Liability) 

c. 

69  ( 

Settled  Land) 

c. 

70  ( 

Housing  of  Working  Classes) 

c. 

71  ( 

Bankruptcy) 

1891 

54  &  55  Vict. 

c. 

51 

Slander  of  Women) 

c. 

64  ( 

Middlesex  Registry) 

1892 

55  &  56  Vict. 

c. 

13 

Conveyancing)      .        . 

1893 

56  &  57  Vict. 

c. 

53 

[Trustees)       .... 

c. 

57 

Law  of  Commons  Amendment) 

c. 

63  ( 

Married  Women's  Property) 

c. 

66  ( 

Rules  Publication) 

c. 

71  ( 

Sale  of  Goods) 

1894 

57  &  58  Vict. 

c. 

60  ( 

Merchant  Shipping) 

1897 

60  &  61  Vict. 

c. 

37 

Workmen's  Compensation)  . 

c. 

65  ( 

Land  Transfer)      .         .          17( 

1808 

6l'&  62  Vict. 

c. 

36  ( 

Witnes.ses)     .... 

1809 

62  &  63  Vict 

c 

30 

Commons)     .... 

1900 

63  &  64  Vict. 

c. 

22 

Workmen's  Compensation)  . 

c. 

26 

Land  Charges) 

c. 

48 

Companies)   .... 

1903 

3  Edw.  VII, 

c. 

38 

[Poor  Prisoners'  Defence) 

c. 

42 

(County  Courts)     . 

J73, 


PAGE 

.   253 
.   252 
273,  274 
.   343 
.   341 
.   351 
.   319 
216,  226,  249,  255 
.   310 
190,  365 
246,  248 
.   273 
.   306 
378,  370 
285,  280 
256 
131 
285 
280 
285 
372 
285 
261 
354 
310 
205 
269 
201 
201 
291 
248 
247 
378 
310 
256 
243 
220 
265 
305,  300- 
188 
2C0 
204 
330 
>58-2(;0 
343 
2(i5 
3::!0 
2(il 
201 
344 


226, 


241, 


250,  •![ 


TABLE   OF   STATUTES 


XXVI 1 


1905 
1906 

1907 


5  Edw.  VII, 

6  Edw.  VII, 

7  Edw.  VII, 


1908  8  Edw.  VII, 

c. 
c. 
c. 
c. 

1909  9  Edw.  VII,    c. 

c. 
1911  1  &  2  Geo.  V,  c. 
c. 
c. 
c. 


c.  15  (Trade  Marks) 

c.  47  (Trade  Disputes)     . 

c.  58  (Workmen's  Compensation)  . 

c.  23  (Criminal  Appeal)  . 

c.  28  (Patents)         .... 

c.  29  (Patents)         .... 

c.  15  (Costs  in  Criminal  Cases) 

28  (Agricultural  Holdings) 

40  (Old  Age  Pensions) 

59  (Prevention  of  Crime)     . 

69  (Companies). 

11  (Judicature  (Rule  Committee)) 

49  (Insurance)     .... 
6  (Perjury)         .         .         . 

37  (Conveyancing) 

46  (Copyright)     .... 

55  (National  Insurance) 


PAGE 

.  285 
327,  329 
330 
344 
286 
286 
342 
246 
331 
338 
291 
190 
292 
341 
242 
281 
331 


TABLE   OF   CASES 


Ackroyd  v.  Smithson  (1780)  1  Bro.  C.C.  503 

A.-G.  V.  Hooker  (1725)  2  P.  Wms.  338      . 

A.-G.  V.  Odell  [1900]  2  Ch.  47   . 

Allen  V.  Flood  [1898]  A.  C.  1    . 

Amalgamated  Society  v.  Osborne  [1910]  A.C.  87 

Anon.  (1340)  Y.B.  (Record  Series)  14  Edw.  Ill,  104 

Ano7i.  Y.B.  Ass.  (1348)  fo.  94,  pi.  41 

Anon.  Y.B.  38  Edw.  Ill  (1364)  fo.  26 

Anon.  Y.B.  43  Edw.  Ill  (1369)  fo.  33,  pi.  38 

Anon.  Y.B.  46  Edw.  Ill  (1372)  fo.  19,  pi.  19 

Anon.  Y.B.  48  Edw.  Ill  (1374)  fo.  6,  pi.  11 

Anon.  Y.B.  2  Hen.  IV  (1400)  fo.  5,  pi.  16 

A7ion.  Y.B.  9  Hen.  VI  (1431)  ff.  23-25,  pi.  19 

Anon.  Y.B.  14  Hen.  VI  (1435),  fo.  18,  pi.  58 

Anon.  Y.B.  19  Hen.  VI  (1440)  fo.  56,  pi.  19 

Anon.  Y.B.  19  Hen.  VI  (1441)  fo.  49,  pi.  5 

Anon.  Y.B.  20  Hen.  VI  (1442)  fo.  34,  pi.  4 

Anon.  Y.B.  33  Hen.  VI  (1454)  p.  42,  pi.  19 

Anon.  Y.B.  33  Hen.  VI  (1455)  fo.  26,  pi.  12 

Anon.  Y.B.  7  Edw.  IV  (1467)  fo.  6,  pi.  16 

Anon.  Y.B.  18  Edw.  IV  (1479)  fo.  23,  pi.  5 

Ation.  Y.B.  21  Edw.  IV  (1481)  fo.  11,  pi.  2 

Anon.  Y.B.  11  Hen.  VII  (1496)  fo.  25,  pi.  7 

Anon.  Y.B.  12  Hen.  VII  (1498)  fo.  22,  pi.  2 

Anon.  (1510)  Keil.  160,  pi.  2      . 

Aiion.  (1536)  Dyer,  19a      .... 

Anon.  (1567)  Dyer,  264b    .... 

Anon.  (;1584)  3  Leon.  119  , 

Anon.  (1675)  2  Freeni.  Cha.  145 

Anon.  (1679)  2  Ch.  Ca.  4  . 

Archholdv.  Scidly  (1861)  9  H.L.C.  360     . 

Ardierv.  Morse  (1686)  2  Vern.  8 

Armitage  v.  Metcalf  (1664)  1  Ch.  Ca.  74    . 

Ashhy  V.  White  (1703)  2  Ld.  Raym.  938    . 

AsheomVs  Case  (1674)  1  Cha.  Ca.  232 

Asherv.  Whitlock  (1865)  L.R.  1  Q.B.  1    . 

Atkiris  V.  Daubeynj  (1714)  1  Eq.  Ca.  Ab.  45 

Atkins  V.  Hill  (1775)  Cowp.,  287,  288 

Awhry  v.  George  (1600)  Acta  Cancellariae,  757-759 


PAOB 

232 
131 
259 
326 
330 

88 
137 

85 
137 
137 
137 
162 

86 
138 
174 
137 
138 
174 
142 
174 
141 
174 
143 
145 
141 
145 
227 
135 
296 
231 
354 
230 
231 
312 
296 
354 
296 
229,  230 
209,  229 


Bacon's  Will,  Be  (1881)  31  Ch.D.  460      . 
Bain  v.  Fothenngill  (1874)  L.R.  7  H.L.  158 
Bainbridge  v.  Firmstone  (1838)  8  A.  &  E.  743 


131 
257 
802 


XXX 


TABLE  OF   CASES 


Btrkerv.  Tngall  [1911^  2  K.B.IS2      . 

Banks  v.  Sutton  (1732)  2  P.  Wms.  700      .      ,   . 

Barker  V.  Kcat  (1077)  2  Mod.  249      , 

Barnesby  v.  Poicel  (1748)  1  Ves.  119 

Barrow  v.  Lleicellin  (1616)  Hob.  62  . 

Bartonshill  Coal  Co.  v.  Beid  (1858)  3  Macq.  326 

Bates  V.  Dandy  (1741)  2  Atk.  206      . 

BattishiU  v.  Reed    (1856)  18  C.B.  696 

Bennet  v.  Davis  (1725)  2  P.  Wms.  315 

Bertie  v.  Ld.  Chesterfield  (1723)  9  Mod.  31 

Bevant  v.  Pope  (1681)  Freem.  Cha.  Ca.  43 

Blackburn  v.  Graves  (1675)  1  Mod.  102     . 

Blades  v.  Higgs  (1861)  10  C.B.  (N.S.)  713 

Blake  v.  Lanyon  (1795)  6  T.R.  221    . 

Bodmin  V.  Vandependy  (1685)  1  Vern.  356;  Shower,  P.C. 

Bothamley  v.  Sherson  (1875)  L.R.  20  Eq.  304  . 

Bourne  v.  Dodson  (1740)  1  Atk.  153. 

Boxoen  v.  Hall  (1881)  6  Q.B.D.  333   . 

Bradley  v.  Carritt  [1903]  A.C.  253    . 

Brandt  v.  Dunlop  [1905]  A.C.  454     . 

Browne  v.  Bicards  (1600)  Acta  Cancellariae,  761 

Bruce,  Be  [1905]  2  Ch.  372         ...         . 

Bryant  v.  Herbert  (1878)  3  C.P.D.  389      . 

Burgess  v.  Burgess  (1853)  3  De  G.  M.  &  G.  896 

Burgess  v.  Wheate  (1759)  1  Ed.  177  . 

Burgh  v.  Francis  (1670)  1  Eq.  Ca.  Ab.  321 

Burke  v.  Amalgamated  Society  [1906]  2  K.B.  583 

Butcher  V.  Stapley  (1685)  1  Vern.  364 

Butler's  and  Baker's  Case  (1591)  3  Rep.,  at  26b 

Cadell  V.  Palmer  (1833)  1  CI.  &  F.  372      . 

Capital  and  Counties  Bank  v.  Bhodes  [1903]  1  Ch.  631 

Cartaret  v.  Paschal  (1733)  3  P.  Wms.  198 

Casborne  v.  Scarfe  (1737)  1  Atk.  603 

Case  of  Scandalous  Libels  (1605)  5  Rep.  124b   . 

Chancpy's  Case  (1717)  1  P.  Wms.  408 

Chandos  {D.  of)  v.  Talbot  (1731)  2  P.  Wms.  600 

Chaplin  v.  Chaplin  (1733)  3  P.  Wms.  229 

Charnock  v.  Court  [1899]  2  Ch.  35    . 

Cleymond  v.  Vincent  (1520)  Y.B.  12  Ken.  VIII,  fo.  11,  pi. 

Clifton  V.  Burt  (1720)  1  P.  Wms.  679 

Coggs  V.  Bernard  (1703)  2  Ld.  Raym.  909 

Cohen  v.  Mitchell  (1890)  15  Q.B.D.  262    . 

Cohen  v.  Tannar  [1900]  2  Ch.  609     . 

Coles  V.  Jones  (1715)  2  Vern.  692      . 

Cnllis  V.  Bate  (1846)  4  Thornton,  Notes  of  Cases,  540 

Colls  V.  Home  and  Colonial  Stores  [1904]  A.C.  179 

Colthirst  V.  Bejushin  (1550)  Plowd.  21       .         .         , 

Corbet's  Case  (1599)  1  Rep.,  at  87b  . 

Cork  V.  Baker  (1725)  1  Stra.  34         ...         . 

Cornwall's  Case  (1683)  2  Ventr.  38   . 


69 


PAGE 

330 
220 
121 
230 
147 
318 
297 
144 
219,  223 
224 
219 
220 
274 
325 
220 
252 
271 
325 
216 
297 
229 
248 
132 
284 
31,  219,  220 
219 
330 
217 
272 

225 
260 
296 
220 
146 
23,3 
296 
220 
329 
140 
231 
134,  302 
379 
242 
296 
311 
95 
86 
122 
303 
219 


TABLE  OF   CASES 


XXXI 


Cotton  V.  Cotton  (1G93)  2  Vern.  290  . 

Conrtman  v.  Conyers  (1600)  Acta  Cancellariae,  764 

Croft  V.  Day  (1844)  7  Beav.  43  .  '       . 

Croystonv.  Banes  (1702)  Pre.  Cha.  203 

Cud  V.  Butter  (1719)  1  P.  Wms.  569 

Cuenod  v.  Leslie  [1909]  1  K.B.  880   . 

D'Arcy  v.  Blake  (1805)  2  Sch.  &  Lef.  389 
Darcy  v.  Chute  (1663)  1  Ch.  Ca.  21  . 
Davis  V.  Matthews  (1655)  Styles  455  . 
Deeks  v.  Strutt  (1794)  5  T.R.  090       . 
Derry  v.  Peek  (1889)  L.R.  14  App.  Ca.  337 
Dickison  v.  Holcroft  (1674)  3  Keb.  148 
Doctor  LeyfiekVs  Case  (1611)  10  Rep.  8 
Donaldson  v.  Beckett  (1764)  2  Bro.  P.C.  136 
Dudley  v.  Dudley  (1705)  Pre.  Cha.  241 
Du  Pasquier  v.  Cadhury  [1903]  1  K.B.  104 
Dyer  v.  Dyer  (1788)  Cox,    92     . 
Dyson  v.  Forster  [1909]  A.C.  98 

Eales  V.  England  (1702)  Pre.  Cha.  200 

Eare  v.  Snoio  (1578)  Plowd.  504 

Earl  V.  Kingscote  [1900]  2  Ch.  585    . 

Edimrd  Seymor's  Case  (1613)  10  Rep.  95b 

Edwardes  v.    Wootton  (1607)    Hawarde's   Cases    in    the 

(ed.  Baildon),  343 
Edwards  v.  Carter  [1893]  A.C.  360    . 
Edwards  v.  Countess  of  Warwick  (1723)  2  P.  Wms.  171 
Edwin  V.  Tliomas  (1687)1  Vern.  489 
EUenborough,  Re  [1903]  1  Ch.  699    . 
Ellison  V.  Ellison  (1802)  6  Ves.  656  . 
Eloe  V.  Boyton  [1891]  1  Ch.  501 
Entick  V.  Carrington  (1765)  19  St.  Tr.  1030 
Ethel,  Be  [1901]  1  Ch.  945  ... 

Evelyn  v.  Evelyn  (1728)  2  P.  Wms.  659     . 

Fashion  v.  Atwood  (1680)  2  Cha.  Ca.  6,  38 
Fielding  v.  Morley  (Corpn)  [1899]  1  Ch.  1 
Finch  V.  E.  of  Winchilsea  (1715)  1  P.  Wms.  2 
Five  Knights'  Case  (1627)  3  St.  Tr.  1 
Franklin  v.  Neate  (1844)  13  M.&  W.  481  . 

Gawin  Butler's  Case,  20  Edw.  I  (1291)  St.  II 

Geary  v.  Bearcroft  (1666)  Cart.  67     . 

Giblan  v.  National  Labourer's  Union  [1903]  2  K.B.  600 

Gill  V.  Harewood  (1587)  1  Leon.  61   . 

Glamorgan  Coal  Co.  v.  8.  W.  Miners  [1905]  A.C.  239 

Gorge  v.  Chansey  (1639)  1  Rep.  in  Cha.  6 

Goss  V.  Tracy  (1715)  IP.  Wms.  287 

Gozney  v.  Bristol  &c.  Society  [1909]  1  K.B.  901 

Gregory  v.  D.  of  Brunsidck  (1843)  6  M.  &  G.  205,  953 


Star 


PAGE 

223 
215 
285 
217 
217 
306 

220 
223 

207 
229 
217,  291,  309 
303 
163 
276,  279 
220 
132 
221 
255 

218 
114 

306 
121 
Chamber 

146 
304 
217 
220 
242 
297 
287 
235,  335 
255 
252 

295 
187 
219 
334 
274 

91 

218 
326,  327 
140 
326 
222,  223,  295 
230 
330 


XXXll 


TABLE   OF   CASES 


Man-is  v.  Buller  (1798)  1  Ilagg.  4r).';n. 

Harris  v.  Harris  (1681)  1  Vein.  33    . 

Harrison  v.  Cage  (1698)  1  Ld.  Raym.  386 

Hartopp's  and  CocWs  Case  (1627)  Ilutt.  88 

Haiokes  V.  iS'aiinders  (1775)  Cowii.  289 

Haymer  v.  Haijmer  (1678)  2  Vent.  343 

Heath  v.  Heath  (1781)  1  Bro.  C.C.  147 

Hedicorth  V.'  Frimate  (1662)  Hardres,  318 

Heme  v.  Heme  (1706)  2  Vern.  555    . 

Heydon's  Case  (1584)  3  Rep.  18 

Heyvxird's  Case  (1595)  2  Rep.  35a    . 

Hicks'  Case  (1619)  Hob.  215      . 

Hoadly  v.  McLaine  (1834)  10  Bing.  482 

Holt  V.  Ward  (1732)  2  Stra.  937 

Home  and  Colonial  Stores  v.  Colls  [1904]  A.C.  179 

Hopkins  v.  Hopkins  (1738)  3  Atk.  581 

Horam  v.  Humfreys  (1771)  Lofft,  80 

HoweWs  Case  (1588)  1  Leon.  71 

Hulbert  v.  Dale    (1909)  78  L.J.    Ch.  457 

Hulme  V.  Tenant  (1778)  Bro.  C.C.  16 

Hunt  V.  Bishop  (1853)  8  Exch.  675    . 

Himt  V.  Bourne  (1703)  1  Salk.  339    . 

Hurst  V.  Goddard  (1670)  1  Cha.  Ca.  109 

Hutchinson  v.  York  &c.  By.  (1850)  5  Exch.  351 

Hyman  v.  Van  den  Bergh  [1908]  1  Ch.  107 

Hynde's  Case  (1591)  4  Rep.  70b 

Income  Tax  Commrs.  v.  Pemsel  [1891]  A.C.  531 

Jackson  v.  Hobhouse  (1817)  2  Mer.  483      . 
Jacobson  v.  Williams  (1717)  2  P.  Wms.  382      . 
Jee  V.  Audley  (1787)  1  Cox,  324 
JemmetVs  and  Griesfs  Contract    [1907]  1  Ch.  629 
Jenks'  Case  (1676)  6  St.  Tr.  1189-1208      . 
Jenks  V.  Holford  (1682)  1  Vern.  61    . 
Jocelynv.  Skclton    (1558)  Benloe,  57 
Jones  V.  Powell  (1712)  1  Eq.  Ca.  Ab.  84    . 
Joseph  V.  Lyons  (1884)  15  Q.B.D.  280 

Keech  v.  Sandford  (1726)  2  Eq.  Ca.  Ab.  741      . 
Jukeicich  v.  Manning  (1851)  1  De  G.  M.  &  G.  176 
Kerrich  v.  Bransby  (1727)  7  Bro.  P.C.  437 
KHtleby  v.  Aticood  (1684)  1  Vern.  298 
Keyhoay  v.  Kcylway  (1726)  2  P.  Wms.  344 
King  v.  Melling  (1073)  2  Lev.  58       .         .         . 
Knights  v.  Atkyns  (1686)  2  Vern.  20 
Kynaston  v.  Moore    (1627)  Cro.  Car.  89    . 

Lake\<t  Case  (1619)  Calendar  of  State  Papers  (Dom 

Lake  V.  Hittton  (^^>^8)  Uoh.  •2'y2 

Lake  V.  King  (1668)  1  AVnis.  Saund.  ]3]b 


)m. 


19, 


21 


PAGE 
311 

215 
303 
93 
229 
223 
225 
210 

233,  234 
240 

121,  122 
147 
300 
305 
356 
100 
303 
334 
356 

224,  305 
242 
116 
295 
318 
356 
121 

187 

225 
224 
225 
248 
335 
229 
140 
217 
368 

221,  236 
297 
230 
232 
268 
114 
232 
141 

146 

147 
147 


TABLE   OF   CASES 


XXXlll 


LampeVs  Case  (1612)  10  Rep.  46b     , 
Lane  v.  Capsey  [1891]  3  Ch.  411        ..         . 
Leach  v.  Honey  (1765)  19  St.  Tr.  1001 
Lechmere  v.  Lechmere  (1735)  Ca.  temp.  Talb.  80 
Lingen  v.  Savray  (1711)  1  P.  Wins.  172    . 
Llewellyn,  Be  [1911]  1  Ch.  451 
Lloyd  V.  Spillet  (1740)  2  Atk.  148      . 
Luinley  v.  Gye  (1853)  2  E.  &  B.  224  . 
Lutwich  V.  Milton  (1620)  Cro.  Jac.  604      . 
Lyons  v.  Wilkins  [1899]  1  Ch.  255    . 

Macclesfield's  (E.  of)  Case  (1725)  16  St.  Tr.  1388-1390 

Manders  v.  Williams  (1849)  18  L.J.  Ch.  437 

Mansell  v.  Mansell  (1732)  P.  Wms.  678 

Marais,  Ex  parte  D.F.  [1902]  A.C.  109 

March  v.  Lee  (1070)  2  Ventr.  337 

Harlow  v.  Pitfield  (1719)  1  P.  Wms.  558 

Marriott  v.  Marriott  (1725)  1  Stra.  666 

3Iartin  v.  Bure  (1002)  Cro.  Jac.  6      . 

Maskell  &  Goldfinch's  Contract  [1895]  2  Ch.  525 

Matthewman's  Case  (1866)  L.R.  3  Eq.  781 

Maxwell  v.  3Iountacute  (1719)  Pre.  Cha.  526     . 

Mayor  of  Faversham  v.  Parke  (1574)  Acta  Cancellariae,  410 

Mercer  v.  Denne  [1905]  2  Ch.,  at  p.  586    . 

3Iidd1eton  v.  Crofts  (1726)  2  Atk.  650 

Millington  v.  Fox  (1838)  3  M.  &  Cr.  338    . 

Mitchell  V.  Fades  (1700)  Pre.  Cha.  125      . 

Mogul  Steamship  Co.  v.  31' Greg  or  [1892]  A.C.  25 

Morrice  v.  B.  of  England  (1736)  Ca.  temp.  Talb.  21' 

Moses  V.  3Iacferlan  (1700)  2  Burr.  1005     . 

3Iurray  v.  Barlee  (1834)  3  My.  &  K.  209  . 

National  Phonograpth  Co.  v.  Ball  [1908]  1  Ch.  335 

Nevil  V.  Saunders  (1636)  1  Vern.  415 

New  Land  Development  Assocji.  v.  Gray  [1892]  2  Ch.  1.38 

Neiv  Zealand  Loan  &c.  Co.  v.  3Iorrison  [1898]  A.C,  at  p.  357 

Nicholas  v.  Nicholas  (1720)  Pre  Cha.  546 

Nicholson  v.  Sharman  (1661)  1  Sid.  45 

Noakes  v.  Bice  [1902]  A.C.  24 

Noel  V.  Jevon  (1678)  Freem.  Cha.  Ca.  43 

Noel  V.  Bobinson  (1682)  1  Vern.  93  . 

Norton  v.  Turvil  (1723)  2  P.  Wms.  144     . 

Norwood  V.  Bead  (1557)  Plowd.  180 

Noys  V.  3Iordaunt  (1706)  2  Vern.  581 

Packer  V.  Wyndham  (1715)  Pre.  Cha.  412 
Palliserv.  Gurney  (1887)  19  Q.B.D.  519   . 
Paquin  v.  Beauclerk  [1906]  A.C.  148 
Parmiter  v.  Co^ipland  (1838)  6  M.  &  W.  105 
Parsons  v.  Freeman  (1751)  Ambl.  115 
Paschall  v.  Eeterich  (1557)  Dyer,  151b 


PAGE 

294 
144 
235,  335 
2.33 
232 
248 
221 
332 
122 
329 

77 
274 
253 
335 
216 
305 
230 
127 
255 
305 
217 
227 
355 
196 
284 
295 
321,  326,  327 
229 
235 
305 

325 
100 
378 
281 
224,  229 
130,  228 
216 
219 
229 
224 
140 
234 

223 
306 
306 
309 
2.52 
227,  229 


XXXIV 


TABLE   OF   CASES 


Pasley  v.  Freeman  (1789)  3  T.R.  51 

Pawlett  V.  A.-G.  (1667)  Hardres,  465 

Peacock  v.  Monk  (1750)  2  Ves.  Sr.  190 

Percival  v.  Wright  [1902]  2  Ch.  421 

Perry  v.  Clissold  [1907]  A.C.  73 

Peske  V.  Bedman  (1555)  Dyer,  113    . 

Peters  v.  Soame  (1701)  2  Vern.  438  . 

PJlilips  V.  D.  of  Bucks  (1683)  1  Vern.  227 

Pilcher  v.  Bawlins  (1872)  L.R.  2  Ch.  App.  260 

Pinchon's  Case  (1611)  9  Rep.  86b      . 

Pledge  V.  White  [1896]  A.C.  197 

Plunket  V.  Holmes  (1661)  1  Lev.  11   . 

Pollock,  Be  [1906]  1  Ch.  146      . 

Ponder  v.  Braddell  (1079)  Lilly,  Modern  Entries,  6 

Pope  V.  Curl  (1741)  2  Atk.  342 

Pope  V.  Onsloio  (1692)  2  Vern.  286    . 

Priestley  v.  Fowler  (1837)  3  M.  &  W.  1 

Pusey  V.  Pusey  (1684)  1  Vern.  273     . 

Pybus  V.  Smith  (1791;)  3  Bro.  C.C.  340 

Quinn  v.  Leathern  [1901]  A.C.  495    . 

B.  V.  Bunn  (1872)  12  Cox,  Cr.  Ca.  316 

B.  V.  Duffield  (1851)  5  Cox,  Cr.  Ca.  431 

B.  V.  Jackson  [1891]  1  Q.B.  671 

B.  V.  Bowlands  (1851)  5  Cox,  Cr.  Ca.  462 

B.  V.  Selsby  (1847)  5  Cox,  Cr.  Ca.  495 

B.  V.  Thornton  (1819)  1  B.  &  Aid.  405 

B.  V.  Turner  (1811)  15  East,  228 

B.  V.  West  Biding  CC.  [1906]  2  K.B.  67( 

Badford  v.  Harhyn  (1606)  Cro.  Jac.  122 

Beard  v.  Stanford  (1735)  Ca.  temp.  Talb.  173 

Bedgrave  v.  Hurd  (1881)  20  Ch.D.  1 

Beed  v.  Operative  Stonemasons  [1902]  2  K.B.  732 

Bichardsv.  Bertram  (1909)  25  T.L.R.  181 

Bichardson,  Be  [1904]  2  Ch.  777 

Bohinson  v.  Bell  (1690)  2  Vern.  146 . 

Bogers  v.  Kennay  (1846)  15  L.J. Q.B.  381 

Bollasonv.  Bollason  (1887)  34  Ch.D.  495 

Bussell  V.  Amalgamated  Society  [1911]  1  K.B,  606 

Bussell  V.  Come  (1704)  2  Ld.  Raym.  1031 

Samson,  Be  [1906]  2  Ch.  584      . 

Savile  v.  Boberts  (1098)  1  Salk.  13    . 

Sayers  v.  Collier  (1884)  28  Ch.D.  103 

Scott  V.  Morley  (1887)  20  Q.B.D.  120 

Scriven  v.  Tapley  (1764)  Ambl.  509  . 

Search's  Case  (1588)  1  Leon.  70 

Seroka  v.  Kattenhurg  (1886)  17  Q.B.D.  177 

Sovenoaks  By.  Co.  v.  L.  C.  &  D.  Co.  (1879)  11  Ch.D.  625 

Shuttleworth  v.  Laycock  (1684)  1  Vern.  244 


308 
219 
224 
236 
354 
140 
296 
217 
368 
140 
216 
114 
248 
278 
279 
216 
318 
209 
225 

327 

323 
320 
324 

320,  324 
319 

43,  156 
320 
187 
163 
222 
217 
326 
329 
247 
229 
274 
274 
330 
324 

227 
143 
363 
306 
224 
334 
306 
328 
216 


TABLE  OF  CASES 


XXXV 


FAGB 

Sir  W.  Pelham's  Case  (1590)  1  Rep.  8 114 

Six  Clerks,  Ux  parte  the  (1198)  3  Yes.  [>89 212 

Six  Members'  Case  (1629)  3  St.  Tr.  235 334 

Skapholme  v.  Hart,  Ca.  temp.  Finch,  477 217 

Skinner  V.  Gunton  {IQQ9)  \"Wms.  ^axmi.  228 .143 

Slade's  Case  (1603)  4  Rep.  02b 140,  298,  308 

Smith  V.  Baker  (1737)  1  Atk.  385 240 

Smith  V.  Johns  (1611)  Cro.  Jac.  257 228 

Smith  V.  Kerr  [1900]  2  Ch.  511 ;  [1902]  1  Ch.  774 203 

Socket  V.  Wray  (1793)  4  Bro.  C.C.  483 225 

Somerset  {D.  of)  v.  Cookson  (1735)  3  P.  Wms.  390 209 

Somerton's  Case,  11  Hen.  VI  (1433)  fo.  18,  pi.  10;  fo.  24,  pi.  1 ;  fo.  55, 

pi.  26 1.38 

Southcote  V.  Venner  (1601)  4  Rep.  83  ;  Cro.  Eliz.  815       ..        .       301,  302 

Stanley  v.  Leigh  (1732)  2  P.  Wms.  686 225 

Stephens  v.  Sole  (1736)   (unreported) 271 

Stephens  V.  Stephens  (1736)  Ca,.  temp.  T&Yb.  228 225 

Stockdale  v.  Hansard  (1839)  9  A.  &  E.  1 309 

Strangeways,  Be  (1886)  34  Ch.D.  423 248 

Streatfield  v.  Streatfield  (1735)  Ca.  temp.  Talb.  176  ....      234 

Stuart  V.  Wilkins  (1778)  1  Doug.  18 141,  308 

Suffolk  {E.  of)  V.  Greenvil  (1641)  3  Rep.  Cha.  50    .        .        .        .      295,  296 

Sutton  V.  Sutton  {\882)  22  C^i.Tt.bM 187 

Sweeney  v.  Coote  [1907]  A.C.  221 327 

Sweetapple  v.  Bindon  (1705)  2  Vern.  536  • 220 

Sicift  V.  Pannell  (1883)  24  Ch.D.  210 273 

Sykes  v.  Sykes  (1824)  3  B.  &  C.  541 284 

Sykes  v.  Walls  (1674)  3  Keb.  382  (3) 141 


Taff   Vale   Case   (1900)    70  L.J.K.B.   905;   [1901]   1 

A.C. 426       

Tailby  v.  Official  Beceiver  (1888)  L.R.  13 
Talbot  V.  D.  of  Shrewsbury  (1714)  Freem 
Tnltarum's  Case  (1473)  Y.B.  12  Edw.  IV 
Tanfield  v.  Davenport  (1638)  Toth.  114 
Tempertonv.  Bussell  [1893]  1  Q.B.  715 
Theobald  v.  Duffry  (1724)  9  Mod.  102 
Thomas  v.  Sylvester  (1873)  L.R.  8  Q.B.  .368 
Tooke  V.  Fitz-John  (1657)  Hardres,  96 
Trustees  &  Executors  Co.  v.  Short  (1888) 
Tubervil  v.  Stamp  (1697)  1  Salk.  13 
Tullett  V.  Armstrong  (1838)  1  Beav.  1 
Tweddle  v.  Atkinson  (1861)  1  B.  &  S.  393 
Twyne's  Case  (1601)  3  Rep.  80 
TyrreVs  Case  (1557)  Dyer,  155 

Vane  v.  Lord  Barnard  (1716)  2  Vern.  738 
Vaughan  v.  Vanderstegen  (1853)  2  Drew.  165 


Wagioorth  v.  Halyday  (1355)  Y.B.  29  Edw.  Ill,  fo.  38 
Wain  V.  Warlters  (1804)  5  East,  10  . 


App.  Ca.  523 
Cha.  Ca.  394 
fo.  19,  pi 


L.R.  13  App.  Ca 


XXXVl 


TABLE  OF  CASES 


Walter  v.  Everard  [1891]  2  Q.B.  369 
Walter  v.  Yalden  [1902]  2  K.B.  304 
Walters  v.  Green  [1899]  2  Ch.  096     . 
Waricick  v.  Bruce  (1813)  2  M.  &  S.  205     . 
Wason  V.  Walter  (1868)  L.R.  4  Q.B.  73    . 
Watts  V.  Ball  (1709)  1  P.  Wms.  108 
Whitmores  v.  Stanford  [1909]  1  Ch.  427    . 
Wichals  V.  Johns  (1599)  Cro.  Eliz.  703      . 
Wilkes  V.  Wood  (1763)  19  St.  Tr.  1153      . 
Wilson  V.  Merry  (1868)  L.R.  1  H.L.  (Sc.)  ; 
Windham  v.  Clere  (1589)  Cro.  Eliz.  130    . 
Winsmore  v.  Oreenhank  (1745)  Willes,  547 
Wright  v.  Black  (1682)  1  Vern.  106 


126 


PAGE 

.  304 

.  354 

.  329 

.  304 

.  309 

.  220 

.  356 

.  140 
235,  335 

.  318 

.  143 

.  324 

.  229 


Young  v.  Peaduj  (1741)  2  Atk.  254 


221 


ABBREVIATIONS 


A.S.L. 


H.L.R. 
L.Q.R.] 
P.  &M. 


S.S. 


"Anglo-Saxon  Laws,"  including  both  the  German  versions  of 
Liebermann  and  Schmidt  (Gesetze  der  Angelsachsen)  and 
Thorpe's  Ancie7it  Laws  and  Institutes  of  England  (Record 
Series) . 

Harvard  Law  Beview. 

Laio  Quarterly  Beview. 

Pollock,  Sir  F.,  and  Maitland,  F.  W.  The  History  of  English  Law 
Before  the  Time  of  Edward  /,  2d  edn.  (Cambridge  Uni- 
versity Press,  1898,  2  vols.). 

Publications  of  the  Selden  Society  (London,  Quaritch,  1887). 


REPORTERS 

A.C.      . 

.     (Law   Reports)    Appeal 

Cro.  Car. 

) 

Cases. 

Cro.  Eliz. 

\  Croke. 

A.  &.  E. 

.     Adolphus  and  Ellis. 

Cro.  Jac. 

i 

Ambl.    . 

.     Ambler. 

Atk.      . 

.     Atkyns. 

De  G.  M. 

\  De  Gex,  Macnaghten, 
J      and  Gordon. 

&  G. 

B.  &  Aid. 

.     Barnewall  and  Alderson. 

Doug.    . 

Douglas. 

B.  &C. 

.     Barne  wall  and  Cresswell. 

Drew.    . 

Drewry. 

B.  &S. 

.     Best  and  Smith. 

Beav.     . 

.     Beavan. 

E.  &B. 

Ellis  and  Blackburn. 

Bing.     . 

.     Bingham. 

Ed.   .     . 

Eden. 

Bro.  C.C. 

.     Brown's  Chancery  Cases. 

Eq.  Ca.  Ab 

.    Equity  Cases  Abridged. 

Bro.  P.C. 

.     Brown's   Cases  in  Par- 

Eq.   .     . 

(Law  Reports)  Equity. 

liament. 

Exch.    . 

Welsby,  Hurlstone,  and 

Burr.     , 

.     Burrow. 

Gordon. 

C.B.      . 

.     Common  Bench. 

Freem. 

"1  Freeman's  Chancery 
J      Cases. 

C.B.  (N.S 

)    Common    Bench     (New 

Cha.Ca. 

Series) . 

Cart.      . 

.     Carthew. 

H.L.C.       . 

Clark's  House  of  Lords 

Ch.  Ca.  or 

\  Cases  in  Chancery. 

Cases. 

Cha.  Ca. 

Hagg.    . 

Haggard. 

Ch.D.    . 

.     (Law  Reports)  Chancery 

Hob.      .     . 

Hobart. 

Division. 

Hutt.     .     . 

Hutton. 

CI.  &  F. 

.     Clark  &  Finnelly. 

C.P.D.  . 

.     (Law  Reports)  Common 
Pleas  Division. 

Keb.      .     . 

Keble. 

Cowp.    . 

.     Cowper. 

L.J.K.B.    . 

Law      Journal,      King's 

Cox, 

.     Cox's  Chancery  Cases. 

Bench. 

Cox,  Cr.  Ca.  Cox's  Criminal  Cases. 

L.R.      .     . 

Law  Reports. 

XXXVlll 


ABBREVIATIONS 


L.R.  Ch.      "I  (Law  Reports)  Chancery 

App.         J      Appeal  Cases. 
L.R.H.L.  .     (Law  Reports)  House  of 

Lords. 
L.R.Q.B.    .     (Law  Reports)   Queen's 

Bench. 
Ld.  Raym.     Lord  Raymond. 
Leon.     .     .     Leonard. 
Lev.       .     .     Levinz. 

M.  &  Cr.  .  Mylne  and  Craig. 

JL  &  G.  .  ^Manning  and  Granger. 

M.  &  S.  .  ISIaule  and  Selwyn. 

M.  &  W.  .  Meeson  and  Welsby. 

Macq.    .  .  Macqueen    (Scotch    Ap- 
peals) . 

Mer.       .  .  Merivale. 

Mod.      .  .  Modern  Reports. 

My.  &  K.  .  Mylne  and  Keene. 

P.  "Wms.    .     Peere  Williams. 

Plowd.  .     .     Plowden. 

Pre.  Cha.  .     Precedents  in  Chancery. 

Q.B.D.       .     (Law  Reports)    Queen's 
Bench  Division. 


Rep. 


Coke. 


Rep.  in  Ch.  \  jj         ^g  j,^  chancery. 
Rep.  Ch.      J       ^  ^ 


Salk.      .     . 
Sch.  &.  Lef. 


Sid.  . 
St  Tr. 
Stra. 

T.L.R. 
T.R. 

Toth. 

Vent. 
Vern. 
Ves.  Sr 


Salkeld.    . 

Schoales      and      Lefroy 

(Irish). 
Siderfiu. 
State  Trials. 
Strange. 

Times  Law  Reports. 
Durnford       and       East, 

Term  Reports. 
Tothill. 

Ventris. 
Vernon. 
Vesey,  Senior. 


"Wms.  Sand.   Sanders  (ed.  Williams). 
Y.B.      .     .     Year  Books. 


PERIOD  I 
BEFORE  THE  NORMAN  CONQUEST 


AUTHORITIES  TEXT-BOOKS 

Gesetze  der  Angelsachsen,  ed.  Liebermann        Bigelow,  M.  M.   History  of  Procedure  in 
(best).  England,  chapters  v-x  (Macmillan). 

„  „  ed.  Schmidt. 

Holdsworth,  W.  S.    A  History  of  English 
Ancient  Laios  and  Institutes  of  England,  Law,  Vol.  II,  Book  I  (Methuen). 

ed.  Thorpe  (Record  Series). 

Maitland,  F.  W.  A  Prologue  to  a  History 

Codex  Diplomaticua  Aevi  Saxonici,  ed.  of  English   Law   (Select  Essays  in 

Kemble.  Anglo-American  Legal  History,  I, 

7-33). 

Diplomatarium  Anglicum  Aevi  Saxonici, 

ed.  Thorpe.  Pollock,  Sir  F.     English  Law  Before  the 

Norman  Conquest  (Select  Essays  in 
Anglo-American  Legal  History,   I, 

Handbook  to  Land  Charters,  Earle. 

Pollock,  Sir  F.,  and  Maitland,  F.  W. 
The  History  of  English  Law  Before 
the  Time  of  Edward  7,  Book  I,  chap- 
ters I  and  n  (Cambridge  Press). 


A  SHORT  HISTORY  OF 
ENGLISH  LAW 

CHAPTER  I 
OLD  ENGLISH  LAW 

IT  is  the  glory  of  English  Law,  that  its  roots  are  sunk  deep  into 
the  soil  of  national  history;  that  it  is  the  slow  product  of  the 
age-long  growth  of  the  national  life.  A  few  words,  therefore, 
albeit  diffident  and  cautious,  must  be  said  in  this  book  of  that  dim 
period  in  which  the  foundations  of  the  national  character  were  laid. 
As  years  go,  it  was  a  long  period,  lasting  little  less  than  six  centuries. 
During  those  long  years,  English  men  lived  and  died,  married  and 
begot  children,  fought  a  good  deal  and  brawled  more,  were  con- 
verted from  heathendom  to  a  rather  secular  Christianity,  built 
a  few  petty  towns.  But,  for  the  most  part,  their  lives  were 
occupied  with  clearing  and  tilling  a  fertile  and  well-watered  country, 
whose  very  fertility  was  a  source  of  endless  labour;  for  the  English 
settlers  found  vast  forests  to  be  cleared  before  the  soil  would  begin 
to  yield  corn  or  pasture.  The  record  of  those  long  years  is  in  the 
smiling  fields  of  modern  England,  whose  remotest  village  seems, 
to  the  visitor  accustomed  to  the  rough  farming  of  virgin  lands, 
like  the  garden  of  some  lordly  pleasure-house.  Some  few  chronicles 
of  this  dim  time  have  survived  to  us.  But  of  laws  and  institutes 
we  have  little;   and  that  little  is  obscure  and  untrustworthy. 

The  so-called  Anglo-Saxon  Laws  date  from  a  well-recognized 
stage  in  the  evolution  of  law.  They  reveal  to  us  a  patriarchal 
folk,  living  in  isolated  settlements,  and  leading  lives 
Saxon'Laws  regulated  by  immemorial  custom.  Whilst  there  are  cer- 
tain features  common  to  all  of  them,  showing  us  a  society 
to  some  extent  homogeneous,  they  differ  in  detail  from  one  petty 
kingdom  to  another,  almost  from  one  village  to  another.  There- 
fore, it  is  very  hard  to  base  any  general  statements  upon  them. 
More  serious  drawback  still,  the  longer  one  studies  them,  the  more 
one  suspects  that  they  deal  rather  with  the  novel  and  uncertain. 


4     A  SHORT  HISTORY  OF  ENGLISH  LAW 

than  uith  the  normal  and  undoubted  rules  of  law.  That  is,  after 
all,  natural;  for,  among  primitive  people,  the  process  of  law- 
making, or  law-declaring,  is  painful  and  laborious,  only  to  be 
resorted  to  under  severe  pressure.  ^Vhy  trouble  to  record  that 
which  every  village  elder  knows  ?  Only  when  a  disputed  point 
has  long  caused  bloodshed  and  disturbance,  or  when  a  successful 
invader  (military  or  theological)  insists  on  a  change,  is  it  necessary 
to  draw  up  a  code.  That  is  practical  sense;  but  it  has  its  draw- 
backs for  the  student  of  legal  history. 

Still,  the  student  must  be  grateful  for  the  Anglo-Saxon  Laws. 
In  some  respects  they  are  unique.  Some  of  them  are  very  archaic 
Their  ^^  character,  pointing  to  a  society  not  far  removed 

Character  from  utter  barbarism,  whose  women  and  slaves  stand  on 
the  same  footing  as  cattle  and  sheep.  Most  of  them  seem  to  have 
been  drawn  up  in  the  vernacular;  whereas  the  corresponding  Leges 
Barbarorum  of  the  Continental  Germans  were,  almost  invariably, 
recorded  in  Latin,  probably  by  Italian  scribes.  Consequently, 
the  old  English  laws  are  more  likely  to  be  true  pictures  of  life  than 
codes  like  the  Lex  Salica,  which,  as  the  famous  "  Malberg  glosses  " 
suggest,  was  translated  by  its  compilers  from  an  uncouth  tongue 
which  they  failed  to  understand.^ 

A  much-debated  question  stands  at  the  threshold  of  our  story. 
How  far  are  we  justified  in  assuming  that  our  English  law  is  of 
Foreign  English  origin  ?  England  was  settled  by  other  tribes 
Influences  before  the  English  arrived.  Those  tribes  had  a  civili- 
zation of  their  own.  They  were  conquered  by  the  Romans,  who 
governed  them  for  centuries.  Those  almost-prehistoric  centuries 
were  the  golden  age  of  Roman  jurisprudence;  before  the  oldest  of 
the  Anglo-Saxon  codes  was  drawn  up,  Justinian's  monumental 
Corpus  Juris  had  been  given  to  the  world.  Wlien  Edward  Long- 
shanks  conquered  the  Welsh  in  the  thirteenth  century,  his 
officials  held  an  inquest  which  revealed  a  highly  organized  system 
of  tribal  land-ownership ;  and  this  system  may  (though  that  is 
by  no  means  certain)  have  dated  from  very  ancient  British 
times,  and  once  have  prevailed  throughout  Britain.  Once  more, 
the  Anglo-Saxon  laws  bear  evident  traces  of  ecclesiastical  influ- 
ence ;  Aethelbirht's  code  was  drawn  up  "  on  St.  Augustine's 
Day."     Are  we  to  suppose  that  nothing  found  its  way  into 

'  Soo  tho  Notes  in  the  synoptic  edition  of  the  Lex  Salica  by  Hessela  and  Kern 
(Murray,  1880). 


OLD   ENGLISH  LAW  5 

them  from  decrees  of  Councils  and  Synods;  though  the  days 
of  a  refined  Canon  Law  were  yet  to  come  ?^ 

Each  branch  of  this  enquiry  is  matter  for  speciaHsts;  and 
none  can  safely  yet  dogmatize.  Only  it  may  be  pointed  out, 
^j^g  that  a  rough  and  ignorant  people  like  the  English, 

Question  noted  from  of  old  for  their  sullen  aloofness  from  the 
wider  world,  would  not  be  very  amenable  to  foreign  in- 
fluences ;  that  they  would  hardly  be  likely  to  borrow  much  from 
the  conquered  Welsh,  from  an  Emperor  at  Constantinople,  or 
even  from  an  Eastern  Council.  Such  outside  influences  as  did 
penetrate  into  primitive  England  came,  probably,  from  household 
slaves,  some  of  whom  might  be  captives  of  superior  education, 
from  provincial  versions  of  the  Theodosian  Code,  or  from  the 
Penitentials  of  the  mass  priest.  It  is  doubtful  whether  Justinian's 
legislation  was  generally  known  in  \Yestern  Europe  before  the 
Norman  Conquest. 

First  we  notice,  that  there  is  no  '  equality  before  the  law. ' 
A  man's  rights  depended,  both  on  his  social  rank,  and,  in  some 
Peoples  cases  at  least,  on  the  custom  of  his  neighbourhood. 
Ranks  jj^    various    apocrj^phal  documents    drawn    up    after 

the  Norman  Conquest,^  we  see  clear  traces  of  a  status  system, 
which,  though  it  was  giving  way,  long  continued  to  dominate 
English  society.  The  noble  by  birth  (eorl,  aetheling,  gesith), 
natural  product  of  pure  patriarchal  life,  had  almost  disappeared. 
He  survives  in  the  older  laws  as  protected  by  a  special  wergild ; 
probably,  if  analogy  is  to  be  trusted,  he  was  maintained  by 
special  gifts  from  his  fellow  tribesmen,  entitled  to  feast  at  their 
houses  and  to  be  clothed  with  the  finest  produce  of  their  looms. 
The  ceorl  is  the  typical  farmer.  If  we  call  him  '  free,'  we  import 
modern  ideas  into  primitive  society.  Probably  he  was  not  free 
in  the  sense  that  he  could  throw  up  his  calling  and  go  where  he 
liked  ;  with  equal  probability  he  had  no  desire  to  do  so.  Prob- 
ably he  paid  some  tribute ;  so  does  the  modern  '  free  citizen.' 
Certainly  he  was  liable  (or,  should  we  say,  entitled  ?)  to  military 
service.  On  the  other  hand,  he  had  probably  a  substantial 
claim,  by  the  mere  fact  of  his  birth,  to  a  share  in  the  land  of  his 

1  The  oldest  collection  of  Canons,  that  of  Dionysius  Exiguus,  is  also  older  than 
the  oldest  English  code. 

*  E.g.  the  Rectitudines  Singularum  Personarum  and  the  De  Veteri  Consuetudine 
Promotionum,  both  printed  in  the  collections  of  Anglo-Saxon  Laws. 


6    A  SHORT  HISTORY  OF  ENGLISH  LAW 

village ;  and  his  life  was  protected  by  a  wergild  which  was,  almost 
certainly,  payable  to  his  kindred,  and  not,  even  towards  the  end 
of  the  period,  to  his  lord.^  Below  the  ceorl  came  a  class  whom  we 
may  fairly  call  '  unfree,'  in  the  sense  that  they  were  treated  more 
as  property  than  as  persons.  Doubtless  (as  some  of  the  names 
given  them  imply)  they  were  not  mere  domestic  slaves,  herded 
together  in  their  lord's  house,  but  were  allowed  to  occupy  cot- 
tages and,  probably,  patches  of  land.  But,  in  the  period  of 
which  this  chapter  treats,  they  were  marked  off  from  the  ceorl 
by  the  facts  that  they  did  not  serve  in  the  host,  they  had  no  place 
in  the  moot,  and  that  violence  to  their  persons,  though  it  was 
punishable,  brought  them  no  personal  compensation.  The 
mannbot  of  the  unfree  went  to  his  lord.  The  many  names 
(theow,  esne,  laet,  &c.)  by  which  this  class  is  described  in  the 
Anglo-Saxon  Laws,  seem  to  point,  not  merely  to  differences  of 
race,  but  to  differences  of  legal  standing.  Still,  no  conclusive 
solution  of  these  problems  has  yet  appeared. 

Most  important,  for  legal  purposes,  is  the  class  of  thegns, 
which,  apparently  unknown  or  little  important  in  the  earliest 
days,  from  the  end  of  the  ninth  century  rapidly 
acquired  a  prominent  position.  The  origin  of  the 
thegn  is  matter  for  general  and  constitutional  history.  But  it 
must  be  noticed  that,  from  his  earliest  mention  in  the  codes, 
he  is  specially  marked  by  signs  which  rapidly  become  character- 
istic of  later  law.  He  is  peculiarly  connected  with  the  royal 
service.^  All  thegns  are  servants,  as  their  name  implies;^  but 
the  "  King's  thegn"  overshadow  the  others,  and  tend  to  exclude 
them  finally  from  a  class  which  is  rapidly  becoming  of  special 
importance.  Service,  with  the  thegns,  at  any  rate  with  many 
of  them,  was  peculiarly  associated  with  land-holding ;  we  shall 
probably  not  be  wrong  in  identifying  the  thegn  with  the  land- 
rica  or  land-hlaford,  who  appears  as  an  established  institution 
from  the  time  of  Aethelstan,  exercising  jurisdiction  in  matter  of 
purchases,  collection  of  tithes,  accusing  of  criminals,  and  other 
functions  of  local  authority.  Of  his  relation  to  land-ownership, 
something  more  must  be  said  when  we  come  to  deal  with  that 

•  Liebermann,  p.  393  (Walreaf).  The  lord  may  have  had  an  additional  claim 
against  the  murderer. 

'  The  " king's  thegn"  is  mentioned  as  early  as  the  code  of  Wihtraed  (20),  attrib- 
uted to  the  year  695  a.d. 

'  It  is  the  modern  German  'dienen'  =  'to  serve.' 


OLD   ENGLISH  LAW  7 

subject.  But  we  cannot  here  part  from  the  thegn  without 
noticing,  that  through  him  the  rule  of  forfeiture  for  misbehaviour 
seems  to  have  come  into  our  law.  The  thegn  who  deems  an 
unjust  doom  is  to  lose  his  thegnship.^  It  is  a  principle  which 
can  be  widely  applied. 

In  matters  more  strictly  legal  than  the  organization  of  society, 
we  note  at  first,  apparently,  an  almost  entire  absence  of  that 
exercise  of  State  authority  which,  at  the  present  day,  is  regarded 
as  an  essential  of  civilized  life.  This  is  specially  remarkable 
in  that  branch  of  law  which  to  us  seems  the  peculiar  province  of 
the  State,  viz.  the  administration  of  justice.  Nothing  can  be 
clearer  than  that,  in  the  earlier  part,  at  least,  of  the  Early  English 
period,  the  action  of  the  State,  or  even  of  the  local  authorities, 
in  this  matter,  was  only  invoked  in  rare  cases,  and  with  great 
reluctance. 

The  oldest  form  of  redress  for  injuries  suffered  is  personal 
vengeance.  In  one  sense  it  is,  of  course,  illegal,  because  it 
is  not  regulated  or  formally  sanctioned  by  the  State ; 
in  another  it  is  not,  for  there  is,  in  the  earliest  days, 
no  law  against  it.  Moreover,  whatever  public  opinion  may 
then  have  existed  regarded  it  with  toleration,  if  not  with  actual 
approval.  The  first  restriction  comes  with  the  feeling  that 
indiscriminate  vengeance  is  intolerable.  The  man  who  has 
been  wounded  by  a  chance  arrow  must  not  shoot  at  sight  the 
first  man  he  happens  to  meet.  He  must  make  some  attempt 
to  identify  the  aggressor.  If  the  wound  proves  fatal,  the  rela- 
tives of  the  slain  may  avenge  the  victim.  But  they,  too,  must 
not  slay  indiscriminately ;  they  must  restrict  their  vengeance 
to  the  murderer,  and  his  kindred,  who  may  be  supposed  to  be 
FoUowing  sheltering  him.  If  an  ox  is  stolen,  there  must  be 
the  Trail  some  attempt  to  track  it ;  the  trail  must  be  followed 
until  it  leads  to  the  stall  of  the  thief.  It  is  not  permissible  to 
seize  the  nearest  beast  to  replace  the  loss.  If  the  track  leads 
to  the  thief's  stall,  but  the  stolen  ox  cannot  be  found,  the  pursuer 
may  seize  a  beast  belonging  to  the  suspected  thief, 
to  compel  the  return  of  the  stolen  ox.  But  he  may 
not  make  good  his  loss  at  the  expense  of  his  peaceful  neighbour, 
who  has  done  him  no  wrong. 

There  is  abundant  evidence  in  the  Anglo-Saxon  Laws,  that 

»  A.  S.  L.,  Edgar,  III,  3  (Andover) 


8     A   SHORT  HISTORY  OF  ENGLISH  LAW 

the  feud,  the  fresh  pursuit,  and  the  distress  (nam)  were  per- 
fectly famihar  to  the  compilers  of  the  codes.  There  is  also 
evidence  that  the  wiser  members  of  the  community,  supported 
by  the  kings,  were  anxious  to  modify  and,  perhaps,  ultimately 
to  suppress  them.  Not  only  do  there  appear  numerous  attempts 
to  restrict  the  feud  to  its  narrowest  limits  —  it  is  to  be  levied 
only  against  the  actual  wrong-doer  and  his  harbourers,  the 
right  of  sanctuary  is  to  be  respected,  and  on  peace  days  hos- 
tilities are  to  cease.  But  the  Laws  aim  continually  and  ear- 
nestly, with  minute  care,  to  persuade  the  aggrieved  party  to 
accept  the  blood  fine  or  wergild  in  lieu  of  corporal  revenge ; 
at  any  rate  if  the  wrong-doer  does  not  attempt  further  violence, 
'  right '  must  be  demanded  of  him  before  the  ancient  claim 
of  vengeance  is  enforced.^  So  also,  even  if  the  stolen  beast  is 
tracked,  the  person  with  whom  it  is  found  must  be  given  a 
chance  of  proving  his  innocence ;  he  may  have  bought  it  in  an 
open  market  before  proper  witnesses.  And  so  the  picturesque 
process  of  intertiatio,  or  anefang,  is  enjoined ;  after  a  formal 
claim  has  been  made,  the  beast  is  lodged  with  a  third  person 
to  await  the  issue  of  the  dispute.^  Only  with  the  advent  of  a 
strong  monarchy  was  it  possible  to  stamp  out  the  extra-judicial 
distress,^  or  at  least  to  confine  it  to  claims  by  a  lord  against  his 
vassal.  In  later  days,  the  process  of  vee  de  nam  became  one 
of  the  most  important  in  the  legal  armoury ;  and  the  remedy 
of  replevin  curbed  even  the  privileges  of  a  lord. 

What  exactly  happened  if,  as  the  result  of  these  attempts 
Clearing  ^^  substitute  legal  procedure  for  self-help,  the  hot  blood 
Oath  and  was  cooled,  and  the  parties  made  to  swear  the  peace,  it 
is  very  difficult  to  say.  Mr.  Bigelow,^  arguing  from 
the  evidence  of  the  next  period,  and  founding  himself  on 
the  very  reasonable  assumption  that  the  Norman  procedure 
took  over  a  good  deal  of  the  pre-Norman,  has  attempted  to 
construct  a  sort  of  general  picture  of  a  primitive  English  lawsuit. 
But  the  subject  is  beset  with  difficulties ;  for  of  contemporary 
evidence  there  is  little  or  none,  if  we  except  the  few  forms  of 

'  See  especially  Aelfred,  42;  Aethelr.  IV,  4  (London) ;  Edmund,  II,  1,  2  (Lon- 
don) ;    all  in  A.  S.  L. 

'  Ine,  25,  1 ;  75  ;  Aethelst.  II,  9 ;  Aethelr.  II,  8.  Apparently  the  native  word 
does  not  appear  in  the  Laws.     This  suggests  that  the  process  was  of  foreign  origin. 

'  There  is  clear  prohibition  in  the  so-called  Laws  of  William,  44  (A.  S.  L.).  It 
may  or  may  not  represent  pre-Conquest  law. 

*  History  of  Procedure  in  England,  Macmillan,  1880. 


OLD   ENGLISH  LAW  9 

oath  and  the  fragments  of  the  ordeal  ritual  which  survive.^ 
Generally  speaking,  it  may  be  said  that  the  formal  proceedings 
commenced  with  the  pronouncement,  by  the  elders  of  the  moot, 
of  a  doom  which  specified  the  penalties  for  the  alleged  offence, 
and  settled  the  very  important  question  of  the  onus  of  proof, 
or,  as  it  ought,  perhaps,  according  to  the  ideas  of  the  day  to  be 
called,  the  privilege  of  proof.  And  so  we  are  not  surprised  to 
find  that  '  denial  is  ever  stronger  than  claim ' ;  ^  for  the  '  proof  ' 
was  not  what  we  should  understand  by  evidence  at  all,  but  merely 
a  general  denial  of  the  accusation  by  the  accused  and  his  oath- 
helpers.  Generally  speaking,  if  the  accused  was  of  good  charac- 
ter, and  the  circumstances  were  not  overwhelmingly  against  him, 
a  day  was  set  for  the  performance  of  this  ceremony ;  and,  if  it 
were  successfully  accomplished,  with  due  number  of  helpers  and 
due  observance  of  technicalities,  the  accused  was  acquitted. 
But  if  the  accused  were  '  tihtbysig,'  i.e.  of  bad  character, 
or  if  he  had  been  taken  red-handed,  he  was  put  to  the  severer 
test  of  the  ordeal. 

What  happened  in  either  case  if  the  accused  failed  to  clear 
himself,  is  also  a  matter  of  no  little  doubt.  Probably  he  or 
his  relatives  paid,  or  gave  security  for,  the  proper  wergild  with- 
out further  dispute.  If  he  or  they  were  still  obstinate,  or  too 
poor,  the  feud  which  these  proceedings  had  attempted  to  scotch, 
revived ;  and  the  injured  party  or  his  relatives,  if  sufficiently 
strong,  exercised  the  ancient  right  of  corporal  vengeance.  Even 
at  the  end  of  this  period,  the  local  moot  seems  to  have  had  no 
executive  power  whatever ;  and  the  royal  action,  if  it  applied 
at  all  to  private  lawsuits,  was  confined  to  the  simple  step  of 
compelling  the  accused  to  come  before  the  moot  in  the  first 
instance.  To  secure  his  re-appearance,  it  was  necessary  to 
take  security  from  him;  either  by  pledge  (wed)  or  by  bail 
(borh). 

In  all  this  process,  the  action  of  the  State,  i.e.  the  central 
government,  was,  as  has  been  said,  very  small.  But  there  are 
Stat  A  ti  signs  that,  even  in  this  remote  Early  English  period, 
the  royal  officials  were  beginning  to  play  a  larger 
part  in  the  administration  of  justice.  They  probably  approached 
the  matter,  first  from  the  side  of  revenue,  then  from  that  of  police. 

1  A.  S.  L. ;   Liebermann,  I,  396-429. 

2  A.  S.  L. ;   Aethelr.  II,  9  (3). 


10    A  SHORT  HISTORY  OF  ENGLISH  LAW 

From  the  days  of  Ine,  at  least,  the  ceorl  who  neglected  his  mili- 
tary service  paid  '  fyrdwite  '  to  the  King ;  ^  in  the  reign  of  Edward 
the  Elder  ^  we  see  traces  of  the  '  oferhyrnes,'  or  special  fine  to 
the  King  for  disobedience  to  the  royal  command,  which  was, 
apparently,  often  used  to  support  the  authority  of  the  local 
moot  in  the  adjustment  of  disputes. 

But  the  claims  of  the  King  soon  went  still  further.  Doubt- 
less the  ordinary  offence,  even  the  violent  offence,  was  looked 
Bootless  upon,  primarily,  as  a  wrong  to  the  party  specially 
Wrongs  injured,  and  his  kindred.  Yet  there  are  traces,  in 
almost  all  primitive  law,  of  peculiarly  detested  acts,  which  the 
community  takes  upon  itself  to  punish  by  some  form  of  com- 
munal vengeance.  The  interesting  survival  of  the  darrocade, 
described  by  Mr.  Round,^  in  the  communes  of  the  twelfth 
century,  may  or  may  not  be  primitive ;  but  it  is  clear  that  very 
primitive  people  draw  a  distinction  between  a  merely  festive 
murder  or  robbery,  and  an  act  aimed  directly  at  the  security 
of  the  community,  such  as  tampering  with  strangers  against  the 
common  interest,  or  putting  a  spell  on  the  common  fields.  In 
its  modern  form  of  '  Lynch  law,'  the  same  interest  still  manifests 
itself  where  the  State  is  weak.  The  vengeance  of  the  community 
is,  however,  slow  and  unorganized.  A  great  step  is  gained  when 
the  King  takes  its  place.  Not  onl}^  are  '  botleas '  offences 
more  promptly  punished ;  but  the  list  of  them  can  be  in- 
definitely extended.  The  change  was  clearly  marked  in  England 
by  the  time  of  Cnut;"*  by  the  time  of  the  Conquest  the  list 
of  the  '  King's  rights  '  had  greatly  extended.^  Thus  the  land 
saw  the  beginnings  of  a  true  criminal  law.  A  man  accused  on 
such  a  charge  had  no  right  to  the  elaborate  privileges  which  stood 
between  the  private  accuser  and  his  prey.  Until  the  Assise  of 
Clarendon,  in  the  next  period,  introduced  something  like  a  true 
criminal  procedure,  he  was  lucky  if  he  could  obtain  some  sim- 
ple and  summary  method  of  trial,  probably  by  ordeal.^  It 
was  centuries  before  the   person   accused    at   the  King's  suit 

^  A.  S.  L.  ;  Ine,  51.     (Note  the  difference  between  the  punishment  of  the  gesith 
or  thc'gii,  and  the  ceorl.) 
2  Edward,  II,  2  (1). 
'  Feudal  England,  pp.  552-562. 

*  A.  S.  L. ;   Cnut,  II,  12. 

*  Leges  Henrici  (Primi),  c.  X  (1)  (A.  S.  L. ;    Liebermann,  I,  556). 

*  Legea  Henrici  (Primi),  c.  XLVII,  c.  LX  (17).  This  compilation  probably 
representa  the  law  as  it  was  supposed  to  be  at  the  time  of  the  Conquest. 


OLD   ENGLISH  LAW  11 

secured  what  would  now  be  considered  the  elements  of  a  fair 
trial/ 

It  is  only  indirectly,  and  through  unintentional  hints,  that 
we  can  detach  from  the  heap  of  unsystematic  '  dooms  '  which 
make  up  the  Anglo-Saxon  Laws,  any  hints  of  a 
law  of  property.  The  existence  of  ideas  which  will 
some  day  produce  the  notion  of  property,  or  at  least  of  possession, 
is  to  be  found  in  the  recognition  of  theft  as  an  offence,  and  in 
the  reluctant  allowance,  under  stringent  safeguards,  of  the  sale 
of  cattle.  It  is  clear  that,  in  fact,  many  other  articles,  e.g. 
garments,  armour,  and  weapons,  and,  presumably,  threshed 
corn,  and  ale,  were  known  to  our  pre-Conquest  ancestors.  But 
the  fact  that  the  word  '  chattel '  has  survived  as  the  inclusive 
legal  term  for  all  movable  goods,  points,  not  merely  to  the  great 
importance  of  cattle  in  primitive  times,  but  to  the  importance 
of  the  notion  of  sale  or  barter  in  generating  the  institution  of 
property.  Apparently,  the  Laws  do  not  regard  other  goods  as 
transferable;  except,  perhaps,  for  special  purposes,  such  as  the 
satisfaction  of  wergilds.^  And,  obviously,  the  man  who  was 
found  with  a  beast  bred  in  another  man's  stall  was,  prima  jacie, 
a  thief ;  if  he  wished  to  clear  his  character,  he  had  to  name  the 
man  from  whom  he  bought  it  in  open  market,  and  this  man  must 
take  up  the  burden  of  the  charge,  or  fight  the  man  who  has 
*  vouched  him  to  warranty.'  In  this  process  of  vouching  to 
warranty  {team),  there  was  much  that  influenced  the  law  of 
property  in  later  days.  In  the  oldest  time,  it  was,  primarily,  a 
means  of  escaping  a  charge  of  theft. 

Still  more  reticent  are  the  Anglo-Saxon  Laws  in  anything 
that  relates  to  land-ownership.  In  one  famous  passage,^  land. 
Property  in  regarded  as  a  subject  of  property,  is  divided  into 
^^^^  boc-land  and  folc-land.     The  division  may  or  may 

not  be  exhaustive.     A  curiously  unfounded  theory,  which  was 

1  By  the  time  of  the  Conquest,  murder  had,  in  theory,  become  one  of  the  '  bot-leas 
crimes.'  But,  so  late  as  the  year  1220,  a  survival  of  the  old  wergild  system  for 
homicide  was  recognized  by  the  King's  judges  on  the  plea  of  local  custom.  (See 
Bracton's  Note-Book,  Vol.  Ill,  plea  1474.)  But  possibly  the  case  was  one  of  'sudden 
affray.' 

2  It  is  clear  that,  on  the  Continent,  the  practice  of  satisfying  wergilds  by  payment 
in  kind  was  recognized  early,  e.g.  in  the  Lex  Ribuaria  or  code  of  the  Ripuarian 
Franks  (see  the  author's  Law  and  Politics  in  the  Middle  Ages,  pp.  198-9).  There  is, 
possibly,  a  trace  of  the  practice  in  England  in  Edgar's  Ordinance  of  the  Hundred  (8), 
printed  among  the  A.  S.  L. 

»  A.  S.  L. ;   Edward,  I,  2. 


12    A   SHORT  HISTORY  OF  ENGLISH  LAW 

accepted  for  the  best  part  of  a  century,  identified  it  with  the 
distinction  between  private  and  pubHc  ownership.  The  theory- 
fell  to  pieces  at  the  touch  of  Professor  Vinogradoff ;  ^  and  now% 
dark  as  the  subject  still  is,  it  is  generally  accepted  that  Spelman 
was  right-  when  he  identified  folc-land  with  the  holding  of  the 
ordinary  peasant.  ]More  recent  researches  have  made  it  appear 
probable  that  this  holding  was  a  share  allotted  by  local  custom 
('  folc-riht  ')  in  the  common  fields  of  the  township,  probably 
not  as  a  fixed,  separate  possession,  but  as  a  shifting  interest. 
Boc-land,  as  its  name  implies,  is  '  land  '  which  has  been  made 
the  subject  of  a  written  charter,  or  '  boc  ' ;  and  the  few  genuine 
charters  of  the  period  which  profess  to  deal  with  alienation  of 
land  probably  refer  to  this  kind  of  ownership.  It  seems  to 
have  been  specially  connected  with  thegnship.  The  Recti- 
tudines^  speak  of  the  thegn's  *  boc-riht  '  in  close  connection 
with  his  land ;  and  it  is  not  unlikely  that  what  the  thegn  really 
had  was  jurisdiction  {socn)  over  a  certain  area,  rather  than 
what  would  now  be  called  ownership.  The  ceorl's  folc-land,  on 
the  contrary,  w^as,  probably,  the  land  which  he  ploughed  and 
reaped  by  ancient  customary  rule.  Thus,  the  same  acre  of 
ground  might  be  the  folc-land  of  the  ceorl  and  the  boc-land  of 
the  thegn  who  w^as  his  lord.  If  so,  it  is  clear  that,  even  before 
the  end  of  this  period,  a  long  step  had  been  taken  towards  the 
establishment  of  that  principle  of  tenure  which  to-day  dominates 
our  land  law.  For  the  thegn's  right  could  hardly  come,  ulti- 
mately, from  any  one  but  the  King ;  though  it  is  possible  that, 
even  so  early  as  the  tenth  century,  a  King's  thegn  might  have 
had  thegns  under  him.  Apparently,  folc-land  could  be  alienated 
'with  shire  w'itness.'^  Boc-land  might  well  be  forfeited;^ 
probably  it  could  not  be  alienated  without  the  permission  of 
the  donor.     It  was  as  much  an  office  as  pro])erty. 

Finally,  if  it  be  asked  whetlier,  in  this  early  period,  there 
was  anything  which,  without  abuse  of  terms,  may  be  called  a 
Law  of  Contract,  or  a  Law  of  Tort,  it  must  be  answered  that,  if  we 

'  The  famous  article  appeared  in  the  English  Historical  Review,  VIII,  1-17. 

*  Fevds  and  Tenures,  caps.  V,  IX ;  Antient  Deeds  and  Charters,  in  Posthumous 
Works  (od.  1723),  pp.  12,  33,  233.  Coke  seems  to  have  held  the  same  view  (Com- 
pleate  Copyholder,  s.  IV). 

2  A.  S.  L. ;    Liehorniann,  I,  444. 

*  A.  S.  L. ;  Cnut,  79  (perhaps,  however,  the  passage  refers  only  to  a  disputed 
title). 

'  lb.  77. 


OLD  ENGLISH  LAW  13 

insist  on  modern  distinctions,  there  was  not.  But  if  we  are  con- 
tent to  look  for  primitive  practices  which  may  afterwards  give 
Contract  rise  to  these  modern  ideas,  we  shall  not  look  entirely 
and  Tort  '^^  vain.  For  in  the  practices  of  giving  '  wed '  (pledge), 
or  security  for  the  performance  of  some  act,  or  '  borh  '  (bail), 
as  surety  for  good  conduct,  we  see  undoubtedly  the  legal  ancestors 
of  the  ancient  contracts  of  pledge  and  guarantee.  At  first,  it 
is  probable,  these  practices  were  confined  to  the  most  urgent 
necessities  of  primitive  law,  viz.  the  submission  to  legal  process 
and  the  maintenance  of  the  peace.  But  we  can  hardly  suppose 
King  Alfred  to  have  placed  in  the  forefront  of  his  secular  code 
the  supreme  importance  of  'holding  one's  wed';  unless  the  wed 
had  covered  a  wider  range  of  duty  than  the  mere  delivery  of 
one's-self  to  justice.  It  is  true  that,  along  with  breach  of  wed, 
Alfred  classes  breach  of  oath  ;  but  we  know  that,  in  later  times, 
whatever  the  practice  of  the  Church,  the  Courts  of  the  State 
refused  to  punish  the  loesio  fidei  with  a  legal  sanction.  Of  the 
very  modern  distinction  which  separates  a  breach  of  a  promise 
from  a  '  wrong  unconnected  with  contract,'  there  is  in  this 
period  no  trace.  Scarcely,  as  we  have  seen,  are  men  beginning 
to  draw  the  much  earlier  distinction  between  offences  which 
merely  involve  the  offender  in  a  family  feud,  and  those  which 
also  draw  down  on  him  the  wrath  of  the  King,  with  its  out- 
lawry and  forfeiture.  Therefore  the  famous  generalization  of 
Sir  Henry  Maine  hardly  fits  the  facts  of  the  Old  English  Law, 
if  indeed  of  any  primitive  system.  The  '  penal  law  of  ancient 
England'  is  not,  'to  use  the  Enghsh  technical  word,'  a  'law 
of  Torts.' ^  It  is  a  law  which,  with  rare  exceptions,  recognizes 
merely  the  root  idea  of  a  wrong;  it  does  not  distinguish  between 
crime,  tort,  and  breach  of  contract.  These  sharp  distinctions 
will  come  later  on  ;  but,  even  when  they  arrive,  they  will  overlap 
in  a  way  which  points  conclusively  to  their  common  origin. 
Even  at  the  present  day,  one  and  the  self-same  act  may  be  a 
crime,  a  breach  of  contract,  and  a  tort. 

1  Ancient  Law  (ed.  Pollock,  1906),  p.  379. 


PERIOD  II 

THE  CONQUEST   TO  THE  DEATH  OF  HENRY  III 

1066-1272 


AUTHORITIES 
Quadripartitus,  ed.  Liebermann  (Halle,  1882). 


1  Printed  in  the  va- 
rious  editions   of 
The  Anglo-Saxon 
Laws  (see  Chap. 
„ , -^ .-,        I). 


Leges  Henrici  Primi 
Leges  Willelmi 


*  Corpus  Juris  Civilis. 

Digest      ed.  Mommsen"! 

^^^tutes:    ""T"       (Berlin.  1904-8.) 
Novels       „  „  J 

*  Corpus  Juris  Canonici,  ed.  Friedberg  (Leipzig, 

1879-1881). 

Select  Charters  and  Other  Illustrations  of  English 
Constitutional  History,  ed.  Stubbs  (Oxford, 
8th  edition,  1905). 

Red  Book  of  the  Exchequer,  ed.  Hall  (Rolls  Series, 
3  vols.  1896). 

Glanville,  Tractatus  de  Legibus  et  Consuetudi- 
nibus  Angliae,  ed.  Rayner  (1780,  translation 
by  Beames,  1821). 


TEXT-BOOKS 

Brunner,  H.,  Sources  of  Eng- 
lish Law  (Select  Essays  in 
Anglo-American  Legal  His- 
tory, II,  7-52,  trans.). 


Holdsworth,  W.  S.,  A  History 
of  English  Law,  Vol.  II, 
Bk.  II,  Pt.  I,  chapters  i  and 
II  (Methuen). 


Maitland,  F.  W.,  Materials  for 
the  History  of  English  Law 
(Select  Essays  in  Anglo- 
American  Legal  History, 
II,  53-95). 

Pollock,  Sir  F.,  and  Maitland, 
F.  W.,  The  History  of  Eng- 
lish Law  Before  the  Time 
of  Edward  I ,  Bk.  I,  chapters 
iii-vi.  Bk.  II  (all)  (Cam- 
bridge Press). 

Stubbs,  William,  The  History  of 
the  Canon  Law  in  England 
(Select  Essaj's  in  Anglo- 
American    Legal    History, 

I,  248-288). 

Thayer,  J.  B.,  The  Older  Modes 
of  Trial  (Select  Essays  in 
Anglo-American      History, 

II,  367-402). 

Vinogradoff,   P.,   Villainage  in 
England  (Clarendon  Press). 
The  Growth  of  the  Manor  (Son- 

nenschein). 
English  Society  in  the  Eleventh 
Century  (Clarendon  Press). 

*  Of  course,  editions  of  the  Corpus  Juris  are  almost  innumerable.    Those  named 
are  good  and  easily  accessible. 


Bracton,  De  Legibus  et  Consuetudinibvs  Anglice 
(Tottell,  1569). 

Scargill-Bird,  Guide  to  the  Various  Classes  of 
Documents  Preserved  in  the  Record  Office  (3d 
edition,  1908). 


CHAPTER   II 
SOURCES  OF  THE   COMMON  LAW 

WHATEVER  else  the  Norman  Conquest  may  or  may 
not  have  done,  it  made  the  old  haphazard  state  of 
legal  affairs  forever  impossible.  The  natural  desire 
of  the  conquerors  to  make  the  most  of  their  new  acquisition, 
the  exceptional  administrative  and  clerkly  skill  of  the  Normans, 
the  introduction  of  Continental  politics,  the  rapid  growth  of  the 
country  in  wealth  and  civilization,  soon  proved  the  old  customs 
to  be  inadequate.  For  some  time,  no  one  could  tell  what  was 
going  to  take  their  place.  In  the  end,  there  emerged  a  new 
national  law ;  some  of  it  based  on  immemorial  native  usage, 
some  of  it  unconsciously  imported  from  foreign  literature,  not 
a  little  imposed  by  the  sheer  command  of  a  new  and  immensely 
stronger  central  government.  The  precise  share  attributable 
to  each  of  these  sources  will,  probably,  never  be  ascertained. 
Here,  at  least,  all  that  can  be  done,  is,  to  give  the  reader  some 
general  idea  of  the  materials  which  went  to  make  up  the  common 
law. 

A.  The  Lex  Terrae 

It  was  part  of  the  policy  of  the  Conqueror  to  persuade  his 
new  subjects  that  he  was  heir  to  the  kingdom  of  Edward  the 
Confessor  by  lawful  succession.  The  fiction  must  have  been 
almost  too  gross  for  belief,  even  in  an  unlettered  age ;  but  the 
motive  which  prompted  it  led  William  to  promise  respect  for 
the  '  law  of  the  land,'  i.  .  for  the  ancient  customs  of  the  people. 
The  trouble  was,  that  these  customs  differed  from  place  to  place 
and  from  class  to  class.  No  authoritative  statement  of  them 
existed.  As  we  have  seen,  the  so-called  '  Anglo-Saxon  Laws  ' 
were  fragmentary  and  unsystematic.  The  old  moots  had  kept 
no  records.  There  was  no  class  of  Enghsh  legal  experts,  such 
as  those  jurisconsults  of  the  Roman  Empire  who  had  reduced 
the  usages  of  Republican  Rome  to  order  and  method. 

Not  unnaturally,  efforts  were  made  to  supply  the  gap.     Various 


18     A   SHORT   HISTORY  OF   ENGLISH  LAW 

private  compilations,  one  of  them  at  least  claiming  (untruth- 
fully) an  official  origin,  appeared ;  and  a  few  of  them  have 
survived.  They  throw  comparatively  little  light  on  the  subject ; 
for  their  authors  were  utterly  uncritical,  by  no  means  free  from 
local  and  political  bias,  and  totally  devoid  of  literary  skill. 
Quadripar-  One  of  thcse  Compilations  is  known  as  the  Quad- 
titus  ripartitus,    because    (probably    in    imitation    of    the 

Roman  Institutes)  it  starts  with  the  announcement  that  it 
will  comprise  four  books  —  the  first  containing  a  Latin  transla- 
tion of  the  old  English  Laws,  the  second  certain  contemporary 
documents,  the  third  a  treatise  on  status  and  pleading,  the 
fourth  a  treatise  on  theft  and  its  varieties.  If  it  was  ever  com- 
pleted, it  must  have  been  a  curious  production ;  but  only  the 
first  two  books  have  survived.  The  so-called  '  English  Laws  ' 
are  a  crudely  modernized  version  of  the  dooms  of  Cnut,  Alfred, 
Athelstan,  Edw^ard  the  Elder,  Edmund,  and  Ethelred,  in  the 
order  named.  Some  of  them  are  mere  titles  or  rubrics;  others 
are  translations  more  or  less  full.  The  second  book  begins 
wdth  a  few  official  documents  attributed  to  Henry  I,  and  helps 
us  to  date  the  compilation  at  about  the  year  1115 ;  but  it  soon 
trails  off  into  a  wordy  argument  on  the  subject  of  investitures, 
with  a  special  defence  of  Archbishop  Gerard  of  York,  who  was, 
apparently,  the  compiler's  patron. 

Slightly  later  (probably  about  the  year  1118)  comes  the 
compilation  known  as  the  Laws  of  Henry  I,  because  it  com- 
mences with  a  charter  of  that  monarch.  But  it 
Henrici  is  principally  occupied  with  a  rather  serious  attempt, 

(Primi)  ^y  ^  writer  not  well  fitted  for  his  task,  to  compile  from 

a  multitude  of  local  customs,  of  the  existence  of  which  he  had, 
somehow,  become  aware,  a  general  statement  of  the  principles  of 
English  law.  The  task,  as  has  been  hinted,  was  beyond  the 
author's  powers ;  he  was  no  Bracton.  But  his  work  is  not  without 
value ;  though  it  can  hardly  be  used  safely  by  any  but  an  expert. 

Passing  by  the  two  fragments  known  as  Insiituta  Cindi  and 
the  Consiliatio  Cnuti,  both,  as  their  titles  imply,  based  on  the 
Leges  legislation    of    Cnut,    as   well   as   the   forged   Forest 

WiUeimi  Laws  scandalously  foisted  on  the  same  monarch, 
we  may  notice,  chiefly  to  distinguish  it  from  the  genuine  legis- 
lation of  the  Conqueror,  a  work  known  in  various  editions  as 
the  Laws  of  William  the  Conqueror,  Leges  Willelmi,  or  Leis 


SOURCES  OF  THE   COMMON  LAW        19 

Willelme  (or  Williame).  It  seems,  like  its  immediate  prede- 
cessor (for  it  is  attributed  to  the  first  half  of  the  twelfth 
century)  to  have  been  an  unofficial  compilation  by  some  one 
who  had  access  to  a  collection  of  Old  English  dooms,  and  who 
was  also  more  or  less  in  touch  with  Norman  and  official  usage. 
Apparently,  it  was  compiled  both  in  Latin  and  in  Norman- 
French  ;  hence  it  is  sometimes  spoken  of  as  the  '  bilingual 
code.'  Its  chief  value  is,  perhaps,  that  it  shows  us  a  little  of 
that  feudalizing  process  which  converted  the  old  system  of 
People's  Ranks  into  the  later  system  of  tenure.  At  one  point, 
the  compiler  seems  about  to  tell  us  a  good  deal  concerning 
this ;  ^  but,  apparently,  he  found  it  too  difficult  a  subject,  and 
relapsed  into  a  translation  of  Cnut's  legislation,  the  general 
refuge  of  the  compiler  of  the  day. 

Finally,  and  perhaps  the  least  trustworthy  of  all  in  this  group 
of  sources,  we  have  the  so-called  Laws  of  Edward  the  Confessor, 
Laws  of  which  profess  to  be  an  official  collection,  drawn  up 
Edward  the  jn  1070  from  the  mouths  of  local  juries  by  wise  and 
skilful  officials.  Had  such  an  inquest  ever  really  been 
taken,  it  would  have  been  of  priceless  value.  L^nfortunately,  there 
is  no  reason  to  suppose  that  it  was;  and,  if  it  was,  the  result 
is  certainly  not  to  be  found  in  the  Leges  Edivardi.  In  the 
opinion  of  good  judges,  this  compilation  is  the  least  valuable  of 
all  the  group,  for  historical  purposes ;  though  it  seems  to  have 
been  popular  in  its  day. 

B.  Roman  Law 

Almost  contemporaneously  with  William's  descent  on  Eng- 
land, came  the  revival  of  the  study  of  Roman  Law  in  Western 
Europe.  Beginning,  naturally  enough,  in  Italy,  in  the  schools 
of  Bologna  and  Pisa,  it  spread  to  Paris,  and  from  Paris  to  Oxford. 
This  time,  it  was  not  the  barbaric  versions  of  the  Code  of  Theo- 
dosius  which  passed  for  Roman  Law;  but  the  great  Corpus 
Juris  of  Justinian,  published  on  the  shores  of  the  Bosphorus 
just  before  the  final  severance  of  the  Eastern  and  Western 
Empires.  As  the  command  of  a  ruler,  it  had  no  force  west  of 
the  Adriatic,  save,  perhaps,  for  some  time,  in  the  Exarchate  of 
Ravenna,  where  the  Byzantine  Empire  maintained  a  precarious 

1  Leis  Willelme  (Liebermann),  20-24. 


20     A   SHORT  HISTORY  OF  ENGLISH  LAW 

footing  for  about  a  century  and  a  half.  It  was  as  a  revela- 
tion of  the  wisdom  of  the  ancient  world,  not  as  the  com- 
mand of  an  imperial  ruler,  that  the  men  of  Western  Europe 
received  the  Digest,  Code,  Institutes,  and  Novels,  and  began, 
with  feverish  haste,  to  apply  their  teaching  to  make  good  the 
yawning  gaps  in  the  barbaric  laws  of  their  native  countries. 
Every  ambitious  youth  studied  eagerly  the  Corpus  Juris;  a 
knowledge  of  its  contents  gave  him  a  sense  of  power  almost 
intoxicating  in  its  keenness.  So  fierce  was  the  heat  which 
radiated  from  this  new  enthusiasm,  that  the  more  conservative 
forces  took  alarm.  In  the  yeaT^J.21Q,  JPoge^Honorius^ni  for- 
Opposition  bade  the  teaching  of  Roman  Law  m  the  schools 
to  Roman  of  Paris,  then,  and  for  long  after,  under  clerical 
sway.  The  pious  Henry  of  England,  in  1234,  issued  a 
similar  ordinance  concerning  the  schools  of  London  (i.e.  of  St. 
Paul's).  A  still  more  effective  antidote  to  the  teaching  of  Vaca- 
rius  at  Oxford,  was  the  later  settlement  of  the  professors  of  the 
Common  Law  in  the  Inns  of  Court,  between  the  Palace  of  West- 
minster and  the  cathedral.  Soon  the  cleric,  sheltered  beneath  the 
coif  which  concealed  his  tonsure,  was  pleading  and  judging  causes 
in  the  new  royal  courts  of  the  Common  Law.  But  we  may  be 
sure,  even  if  we  had  no  evidence,  that  he  did  not  entirely  forget 
the  law  which  he  had  learned  at  Oxford  or  Cambridge,  that, 
when  the  customs  of  the  realm,  faithfully  searched,  gave  no 
answer  to  a  new  problem,  he  fell  back  on  the  Digest  and  the 
Code.  The  older  view,  that  Bracton's  great  work  was  a  mere 
attempt  to  pass  off  Roman  Law  as  English,  is  no  longer  tenable ; 
but  Bracton's  familiarity  with  Roman  Law,  and  the  channels 
through  which  he  derived  it,  have  been  demonstrated  by  the 
hand  of  a  master.^  It  is  idle  to  suppose  that  such  knowledge 
was  not  used ;  especially  in  the  solution  of  those  problems  for 
which  the  ancient  customs  made  no  provision.  But  the  point 
to  be  remembered  is,  that  the  influence  of  Roman  Law  became 
in  England  secret,  and,  as  it  were,  illicit 

C.  Caxox  Law 

Quite  otherwise  was  it  with  the  Law  of  the  Church.     The 
famous    ordinance    of    William    the    Conqueror,    withdrawing 

•  Bracton  and  Azo.  ed.  Maitland  (S.  S.  Vol.  VIII,  1895). 


SOURCES   OF  THE   COMMON  LAW        21 

spiritual  pleas^JroiiijthejCourt  of  the^  Hundred,^  produced  hy, 
and  co-operating  with,  that  spirit  of  clerical  separation  which 
had  become  the  settled  policy  of  the  Papacy,  soon  produced  a 
hierarchy  of  Church  courts  —  archidiaconal,  episcopal,  pro- 
vincial. The  business  of  these  courts  rapidly  increased.  They 
dealt  with  all  matters  which,  by  any  exercise  of  clerical  ingeiiuity, 
could  be  claimed  as  pertaining  to  the  cure  of  souls.  All  matters 
in  which  a  cleric  was  interested,  all  offences  against  the  divine 
law,  all  claims  of  Church  dues,  all  questions  affecting  matrimony 
(a  sacrament  of  the  Church),  all  disputes  concerning  the  validity 
or  meaning  of  wills  (for  these  were  usually  made  in  articulo ) 
mortis),  or  the  distribution  of  property  given  for  pious  uses  — 
these  and  many  other  matters  did  the  Church  courts  claim,  in 
this  and  other  lands,  though  by  no  means  with  invariable  success. 
To  solve_the_many  problems  thus  arising,  there  had  grown  up, 
as  a  riyal_of^  ^j^^^SfVJ^? . ^^ris  .Cimlis.  a.  Corpus  Juris  Canonici. 
The  ancient  collection  of  Dionysius  Exiguus  had  been  swelled 
by  the  forgeries  of  the  so-called  "  Isidore  "  (ninth  century),  and 
by  the  Decretum  Gratiani  (c.  1140).  Later  on,  these  were 
followed  by  the  collection  of  Papal  decrees  known  as  the  Decre- 
tales,  issued  by  Pope  Gregory  IX  (1234),  by  the  Sext,  or  sixth 
book,  of  Boniface  VIII  (1298),  by  the  Clementines  of  Clement  V 
(1317),  and,  finally,  on  the  eve  of  the  Reformation,  by  the 
Extravagantes  (1500).  It  was  formerly  the  orthodox  view, 
that  these  collections  had  no  inherent  force  in  English  eccle- 
siastical courts ;  but  received  only  such  courteous  acknowledg- 
ment as  was  extended  by  the  King's  Courts  to  the  masterpieces 
of  Roman  jurisprudence.  Perhaps,  indeed,  the  theory  of  the 
'  English  Canon  Law  '  was  really  a  reflection  of  the  attitude 
of  the  common  lawyers  towards  the  Romanists.  Anyhow,  it 
can  no  longer  be  held.^  In  matters  properly  cognizable  by 
ecclesiastical  courts,  the  Canon  Law  sanctioned  by  the  Popes 
at  Rome  was  binding  on  all  persons  in  England  —  is,  indeed, 
to  a  certain  extent,  still  binding.  As  for  the  small  English 
output  of  ecclesiastical  legislation  (the  Canons  of  English  Synods 
and  Councils),  it  held  a  very  subordinate  place,  recognized  as 
of  local  operation  only  when  the  Corpus  Juris  Canonici  was 
silent  or  not  inconsistent. 

1  Select  Charters,  85. 

'  The  old  theory  is  finally  disposed  of  in  the  work  entitled  Roman  Canon  Law  in 
the  Church  of  England,  published  by  Professor  Maitland  in  1898  (Methuen). 


22    A   SHORT  HISTORY  OF  ENGLISH  LAW 


D.  Charters  and  Concordats 

It  was  inevitable,  in  spite  of  all  their  professions  of  peaceful 
inheritance,  that  the  Norman  kings  should  think,  act,  and  even 
speak,  as  conquerors.  The  fight  at  Senlac,  and  the  harrying  of 
the  north,  were  events  not  easily  forgotten  or  misunderstood. 
^Villiam  and  his  successors  enjoyed  immensely  greater  power  than 
any  of  the  older  English  kings.  It  was  natural  that  their  subjects 
should  seek  from  them  formal  grants  of  rights,  and  recognitions  of 
claims.  The  '  charter,'  in  this  sense,  is  a  striking  feature  of  the 
period  now  under  review.^  The  Conqueror  himself,  his  son 
Henry,  Henry's  grandson  Henry  II,  John,  and  John's  son  Henry 
III,  all  issued  charters,  professing  to  grant  or  yield  disputed 
points  on  which  the  views  of  the  nation  differed  from  those  of  the 
King.  For  the  most  part,  they  deal  rather  with  matters  of  public 
than  of  private  law ;  though  the  distinction  was  not  then  recog- 
nized. Sometimes,  in  the  later  half  of  the  period,  when  the  royal 
power  was  less  overwhelming,  these  documents  take  the  form 
of  agreements  or  '  concordats  '  between  the  King  and  his  subjects. 
Such  are  the  important  Constitutions  of  Clarendon  of  1164,  the 
short-lived  Provisions  of  Oxford  (125S),  the  Provisions  of  West- 
minster of  1259  (afterwards  embodied  in  the  Statute  of  Marl- 
borough of  1267) ;  and  even  the  earlier  so-called  '  statutes,'  such 
as  the  Statute  of  Merton,  of  1236,  are  really  of  this  type.  The 
true  Parliamentary  statute  does  not  make  its  appearance  until 
the  next  period.  Most  of  the  documents  referred  to  under  this 
head  will  be  found  in  the  useful  Select  Charters  of  the  late  Bishop 
Stubbs. 

E.  Official  Practice 

Lastly  comes  a  source  of  which  it  is  hardly  possible  to  exaggerate 
the  importance  for  this  period.  The  striking  feature  of  the  Anglo- 
Norman  system  was  the  activity  of  the  official.  The  clerks 
who  followed  in  the  train  of  the  Conqueror  swooped  upon  the 
neglected  resources  of  England  as  a  hawk  upon  its  prey.  Prima- 
rily, no  doubt,  their  motives  were  not  elevated.  Men  do  not,  as  a 
rule,  engage  in  an  enterprise  such  as  that  of  William  with  purely 

'  Of  course  the  word  'charter'  will  cover  any  written  document;  especially  if  it 
professes  to  transfer  rights.  When  the  ordinary  medieval  conveyance  was  written, 
it  was  gcuerally  known  us  a  'charter.' 


SOURCES   OF   THE   COMMON  LAW        23 

disinterested  objects.  Still,  it  is  unquestionably  true,  that  the 
Norman  administrator  contrasts  honourably  with  the  Norman 
baron  in  his  treatment  of  the  conquered  country.  And  if  there 
were,  occasionally,  glaring  instances  of  corruption  among  the 
royal  officials,  it  is  evident  also  that  the  standard  of  ability  and 
industry  was,  on  the  whole,  admirably  high.  It  will  be  conven- 
ient to  group  the  mass  of  evidence  which  the  Norman  officials 
have  left  us,  under  three  heads. 

a.  First"  come  the  formal  regulations,  known  generally  as 
Assises,  which  laid  down  general  rules  for  the  conduct  of  official 
Assises  business.     Nominally,    of    course,    these    regulations 

were  made  by  the  King  for  the  direction  of  his  officials  ; 
in  all  probability  they  were,  like  Orders  in  Council  at  the  present 
day,  drawn  up  by  the  officials  concerned,  and  issued  with  the 
royal  approval.  In  theory,  they  did  not  profess  to  affect  the 
conduct  of  the  ordinary  citizen ;  and,  therefore,  by  a  modern 
'jurist,  they  would  hardly  be  ranked  as  part  of  the  general  law. 
In  practice,  they  had  a  substantial  effect  in  that  direction; 
because  the  royal  officials,  in  their  dealings  with  private  persons, 
acted  upon  them,  and  took  good  care  that  they  should  control  the 
course  of  business.  Among  the  most  famous  are  the  Assise  of 
Clarendon  of  the  year  1166,  which  laid  the  foundations  of  modern 
criminal  procedure ;  the  Grand  Assise  and  the  Assise  of  Novel 
Disseisin  of  about  the  same  date,  neither  of  which  survive  in 
complete  form,  but  the  purport  of  which  can  be  gathered  from 
the  forms  of  procedure  to  which  they  gave  rise ;  ^  the  Assise  of 
Northampton,  of  1176,  a  sort  of  second  edition  of  the  Assise  of 
Clarendon;  the  Assise  of  Arms,  of  1181,  which  is,  however, 
concerned  rather  with  public  than  with  private  law ;  and  the 
Assise  of  Woodstock,  of  1184,  dealing  with  offences  against  the 
forest  laws.  All  these  (except  the  two  which  do  not  survive) 
will  be  found  in  Dr.  Stubbs'  Select  Charters. 

h.  The  activity  of  the  Norman  officials  showed  itself  no- 
where more  clearly  than  in  the  mass  of  records  which  began 
„       ^  to    accumulate   in   the   royal   offices   soon    after   the 

Records 

Norman  Conquest.  So  enormous  was  this  mass,  and 
so  great  the  confusion  into  which  it  fell  in  later  times,  that,  even 

'  So  closely  was  this  procedure  connected  with  the  Assises,  that  an  action  under 
it  is  usually,  to  the  confusion  of  the  student,  also  called  an  'assise.'  The  name  was 
even  given  to  the  jury  which  tried  it,  and,  ultimately,  to  the  court  in  which  it  was 
tried. 


24    A  SHORT  HISTORY  OF  ENGLISH  LAW 

now,  much  remains  to  be  done  before  its  contents  can  be  thor- 
oughly classified  and  known.  It  is  sufficient  to  mention  such 
famous  collections  as  Domesday  Book,  drawn  up  at  the  very  end 
of  the  Conqueror's  reign ;  the  great  rolls  containing  the  feet  of 
fines  {i.e.  the  summary  of  the  transactions  effected  by  the 
judicial  process  known  as  a  'fine  '),  which  begin  with  the  reign 
of  Richard  I,  and,  after  a  short  period  of  hesitation,  run  on  for 
more  than  six  centuries ;  ^  the  rotuli  curiae  regis,  or  records  of 
the  King's  Court,  which,  beginning  in  1194,  mark  the  definite 
establishment  of  new  tribunals  by  throwing  oft'  the  De  Banco 
rolls,  or  records  of  the  Court  of  Common  Bench,  in  1234,  and 
the  Exchequer  (plea)  rolls  in  1268,  till  they  themselves  remain 
as  the  Coram  Rege  rolls,  the  records  of  the  King's  (or  Upper) 
Bench.-  Then,  too,  there  are  the  returns  made  to  the  great 
inquest  of  knights'  fees,  in  1166,  and  to  the  inquest  of  tenants 
in  capite  in  1210.^  More  is  to  be  learnt  from  these  records  of 
business  than  from  formal  statements  of  custom  or  law. 

c.   Finally,  there  survive  from  this  period  two  text-books  of 

„  „  .  first-class  importance,  both  written  by  officials, 
Text-Books  ,      ,         „  •       ,  \  •   ^     i  ^  t  ^-      ^• 

and,  thererore,  m  days  which  drew  no  sharp  distinction 

between  public  and  private  capacity,  probably  treated  as  authori- 
tative. These  are  the  treatise  attributed  to  Glanville,  chief 
justiciar  of  Henry  II,  on  the  procedure  of  the  then  new  royal 
tribunals,  which  may  be  dated  about  1187;  and  the  great  work 
on  the  Laws  and  Customs  of  England,  by  Henry  of  Bracton  or 
Bratton,  Justice  of  the  Court  of  King's  Bench,  and  Archdeacon  of 
Barnstaple,  in  the  latter  half  of  the  reign  of  Henry  III.  Glan- 
ville's  little  book  confines  itself  strictly  to  procedure ;  and  its 
chief  value  is  that  it  gives  us,  on  the  highest  authority,  the  forms 
of  that  new  writ-process  which,  as  we  shall  see,  was  to  revolution- 
ize the  administration  of  justice  in  England.  Bracton's  larger 
work,  though  it  is  likewise  based  on  procedure,  is  much  more ; 
for  it  deals  extensively  also  with  what  we  should  now  call  sub- 
stantive law.     Moreover,  as  has  been  hinted  above,  though  it 

1  Certain  extracts  from  these  rolls  have  been  published,  e.g.  by  Sir  T.  D.  Hardy 
(Rotuli  de  Oblatis  et  Finibus,  Record  Series).  But  these  are  not  confined  to  the 
entries  relating  to  the  judicial  conveyances  which  afterwards  became  so  important. 

'  The  first  six  years  have  been  printed  as  Rotuli  Curiae  Regis,  and  abstracts  from 
1194  to  1324  as  Abbreviatio  Placitorum;    both  in  the  Record  Scries. 

'  Both  these  are  printed  in  the  Record  Series  edition  of  the  Red  Book  of  the 
Exchequer;    the  former  at  pp.  18G-445,  the  latter  at  pp.  469-574. 


SOURCES  OF  THE   COMMON  LAW        25 

was  at  one  time  under  suspicion  as  a  theoretical  work,  adapted 
from  the  Roman  Law,  its  character  has  been  triumphantly 
vindicated  by  the  discovery,  by  Professor  Vinogradoff,  among  the 
treasures  of  the  British  Museum,  of  the  very  materials  from  which 
it  was  composed.  And  these  turn  out  to  be  notes  of  actual 
cases  decided  by  the  King's  judges,  made,  in  all  probability,  from 
the  official  records  themselves,  to  which  Bracton,  as  a  judge, 
had  special  access.  These  materials  have  been  edited,  with 
masterly  skill,  by  the  late  Professor  Maitland,  under  the  title 
of  Bracton's  Note  Book.  ^  Bracton  seems  not  to  have  been  able 
to  resist  the  temptation  of  embellishing  his  work  with  flourishes 
which  might  impress  his  readers  with  his  literary  accomplish- 
ments ;  and  so,  as  has  been  said,  there  is  a  good  deal  of  Roman 
phraseology  on  the  surface  of  his  book.  But  the  sub-soil  will 
be  found  to  be  of  native  earth.  A  good  modern  edition  of  the 
text  of  Bracton  is  much  to  be  desired.  The  pretentious  issue 
in  the  Rolls  Series  cannot  be  trusted ;  and  the  sixteenth  and 
seventeenth  century  editions  are  before  the  days  of  critical 
scholarship. 

'  Cambridge  University  Press,  3  vols.,  1887. 


CHAPTER  III 
FEUDALISM  AND  LAND  LAW 

IT  is  a  lesson  which  cannot  be  too  thoroughly  learned,  be- 
cause without  it  an  understanding  of  history  is  impossible, 
that  distinctions  which  to  us  seem  elementary  were  un- 
recognized in  earlier  stages  of  society.  Every  educated  man  now 
distinguishes  clearly  between  government  and  property.  No 
one  supposes,  for  example,  that  the  King  can  deal  with  the  land  on 
which  London  stands,  in  the  way  in  which  he  can  deal  with  Sandring- 
ham  or  any  other  of  his  private  estates.  And  yet,  in  a  sense,  both 
'  belong  '  to  him.  At  the  present  day,  the  difference  is  easily 
understood  ;  and  we  find  no  difficulty  in  explaining  it.  We  say 
that  Sandringham  is  the  King's  property,  but  that  London  is 
only  part  of  his  dominions.  The  one  he  owns,  the  other  he 
governs. 

Such  experienced  administrators  as  the  Norman  officials  must 
have  realized  the  distinction  in  practice.  They  must  have  been 
aware  that,  except  at  the  certain  risk  of  revolution,  the  King 
could  not  attempt  to  treat  the  whole  of  England  as  his  private 
possession.  Other  claims  could  not  be  denied.  William's  fol- 
lowers, including  the  officials  themselves,  wanted  their  share  of 
the  new  conquest.  Many  of  the  English  thegns  had  accepted 
William's  authority  on  promises  of  good  treatment.  The 
Church  expected  to  be  rewarded  for  her  support  of  the  Norman 
claims.  Finally,  even  the  peasantry  could  not  be  treated  as 
mere  chattels ;  for  the  bulk  of  them  were  firmly  rooted  in  the 
soil,  and  nothing  could  have  been  gained,  while  much  would 
have  been  lost,  by  attempting  to  move  them. 

Nevertheless,  William  and  his  officials  were  quite  determined 
not  to  ignore  the  obvious  fact,  that  the  country  was  his  by  the 
universally  admitted  right  of  conquest.  Prudence  might  counsel 
him  to  reward  his  followers  with  gifts  of  good  things,  and  to 
allow  those  English  who  had  made  their  peace  with  him  to 


FEUDALISM  AND  LAND  LAW  27 

remain  undisturbed  in  enjoyment  of  their  ancient  rights.  But, 
somehow  or  another,  WilHam  meant  to  be  a  rich  king 
instead  of  a  poor  duke ;  though  he  fixed  a  steady  eye  on  the 
Danegeld  and  other  items  of  the  old  revenue  of  his  predecessors, 
he  meant  to  have  much  more  than  that.  Moreover,  his  career 
as  Norman  Duke  had  been  made  a  burden  to  him  by  the  inde- 
pendence of  his  vassals ;  just  as  he  himself  had  been  a  thorn  in 
the  side  of  his  nominal  suzerain,  the  King  at  Paris.  It  was  the 
business  of  his  advisers  to  find  a  scheme  which  should  bring  him 
wealth,  and,  so  far  as  possible,  guarantee  him  against  rebellion. 

The  solution  of  the  problem  which  William's  advisers  offered 
him  was  the  application  of  the  already  recognized  principle  of 

lordship  to  the  occupation  of  land.     It  is  quite  un- 
Tenure  .  .  -ii  .... 

true  to  say,  as  is  sometimes  said,  that  in  primitive 

times  land  is  the  only  form  of  property  which  is  of  legal  impor- 
tance. The  law  of  theft,  for  example,  which  clearly  implies 
property  in  chattels,  is  much  older  than  any  land  law ;  and  not 
unnaturally.  For,  in  primitive  times,  the  trouble  is,  not  to  get 
land,  but  to  find  men  willing  to  work  it ;  whereas  cattle,  slaves, 
weapons,  jewels,  and  other  movables,  are  hard  to  come  by,  and 
jealously  guarded.  It  is  only  when  the  growth  of  population 
begins  to  make  land,  especially  land  already  cultivated,  an 
object  of  desire,  and  when  the  accumulation  of  improvements 
has  rendered  men  unwilling  to  leave  the  old  homesteads,  that 
land  law  becomes  really  important,  and  that  eviction  means 
ruin. 

This  stage  had  been  reached  by  England,  as  well  as  other  coun- 
tries of  Western  Europe,  by  the  eleventh  century  ;  and  William's 
advisers  determined  to  take  advantage  of  the  fact.  Every  man, 
noble  and  simple  alike,  should  hold  his  land  as  a  pledge  of  good 
behaviour.  His  duties,  to  King,  lord,  and  neighbour,  should 
be  settled  once  and  for  all ;  and,  if  he  failed  in  them,  he  should 
be  turned  out  of  his  home  and  left  to  starve.  It  was  a  drastic 
scheme ;  but  a  conqueror  holding  a  conquered  country  by  the 
force  of  the  sword  cannot  afford  to  be  squeamish. 

The  scheme  is  embodied  in  Domesday  Book.  Much  of  its 
details  are,  no  doubt,  obscure ;  it  may  well  be  that  we  shall 
Domesday  never  Understand  them  fully.  But  one  thing  is 
^°°^  clear.     The  universal  formula  :  A  tenet  de  B,  expresses 

the  new  bond  of  society.     The  great  noble,  the  tenant  in  capi'e, 


28    A   SHORT   HISTORY  OF  ENGLISH  LAW 

holds  his  many  manors  of  the  King ;    if  he  plots  rebellion,  or 
Knight  fails  to  account  for  the  geld  assessed  on  his  manors, 

Service  ^^  neglects  to  render  his  due. service,  he  loses  his  fief. 

So  with  his  under  vassals,  down  to  the  lord  of  a  petty  manor, 
the  successor  of  the  thegn  '  who  to  the  King's  host  five  hides  had.' 

Below  him,  again,  comes  the  group  of  peasants  who, 

and  whose  forefathers,  from  time  immemorial,  have 
ploughed  and  reaped  the  fields  of  the  township  within  the  manor. 
What  precisely  may  be  their  duties  towards  their  lord,  and, 
through  him,  to  the  King  who  is  lord  paramount  of  all  holdings, 
may  take  long  to  settle ;  Domesday  concerns  itself,  in  this 
respect,  with  little  beyond  the  Danegeld.  But  when  another 
The  Hun-  great  inquest  is  taken,  nearly  two  hundred  years  after 
dred  Domesday,  we  shall  see  that,  during  this  long  period, 

the  manorial  lord  has  gradually  acquired  rights  to'  dues 
and  services  '  from  his  peasants,  which  yield  him  a  substantial  in- 
come, and  which  have  converted  his  office  of  lord  into  what  we 
now  understand  by  property.  How  exactly  the  process  had 
worked,  we  do  not  know ;  though  Professor  Vinogradoff  has  told 
us  much  in  his  brilliant  studies  of  the  period.^  At  any  rate, 
it  seems  that,  as  the  result  of  that  process,  the  ceorl  of  Saxon 
England  had  become,  in  a  sense,  an  'unfree  man' ;  because  a 
substantial  part  of  his  time  had  to  be  spent  in  labouring  on  his 
lord's  domain,  because  he  could  not  sell  his  land,  or  even  desert 
it,  without  his  lord's  permission,  because  his  rights  as  a  land- 
holder were  protected  only  by  custom  and  his  lord's  court,  not  by 
the  common  law  and  the  strong  hand  of  the  royal  tribunals. 

Outside  this  strictly  feudal  hierarchy,  the  Norman  officials 

who  framed  our  land  law  had  to  find  places  for  two  classes  of 

I  Socage  persons  who  could  not  easily  be  fitted  into  the  social 

pyramid.  The  first  of  these  comprised  the  socagers, 
at  first,  apparently,  few  in  number,  but  growing  rapidly  in  later 
times,  until  they  became,  at  least  in  importance,  the  foremost 
class  of  land-holders.  Perhaps,  originally,  they  were  substantial 
ceorls  who,  because  they  kept  clear  of  rebellion,  could  not  be 
deprived  of  their  lands,  and  who,  because  they  were  too  wealthy, 
could  not  be  treated  as  serfs.  They  were  probably  persuaded  to 
go  through  some  form  of  '  commendation,'  or  nominal  surrender 

'  Villainage  in  England  (1892) ;    The  Growth  of  the  Manor  (1905) ;   English  Society 
in  the  Eleventh  Century  (1908). 


FEUDALISM  AND   LAND   LAW  29 

of  their  land  to  the  King  or  other  lord,  from  whom  they  received 
it  back  in  terms  which  satisfied  the  principle  of  tenure,  but  left 
the  tenant  very  free.  It  was  not  inconsistent  with  socage  tenure 
that  the  tenant  should  render  personal  service  to  his  lord ;  but 
such. service  must  not  be  of  a  military  character,  for  that  was 
reserved  for  knightly  tenure,  nor  must  it  be  of  a  degrading 
character,  such  as  that  which  too  often  bound  the  serf.  On 
the  other  hand,  it  must  be  certain,  not  only  in  amount,  but  in 
time  and  mode  of  render ;  so  that  the  socager  may  really  be 
his  own  man.  Socage  service  seems,  in  most  cases,  to  have  been 
early  commuted  for  a  fixed  money  rent ;  which,  with  the  fall  in 
the  value  of  money  which  set  in  soon  after  the  Norman  Conquest, 
and  continued  for  centuries,  ceased  to  be  worth  collecting,  and 
the  socager  became,  as  nearly  as  possible,  an  absolute  owner 
of  his  land.  The  word  '  socage  '  is  an  insoluble  problem.  JNIost 
speculators  connect  it  with  socn  (jurisdiction)  ;  and  it  may  be 
that  attendance  at  his  lord's  court  was  almost  the  only  badge  of 
service  by  which  a  socager  could  be  recognized  as  a  tenant. 
Again,  there  seems  no  reason  why  the  socager  should  not  have 
had  tenants  of  his  own,  for  whom  he  might  hold  a  court.  But 
this  would  hardly  distinguish  him  from  those  who  held  by 
knightly  service. 

Hardest  of  all  was  it  to  persuade  the  Church  to  accept  the  new 
doctrine  of  tenure.  For  one  thing,  the  holder  of  Church  lands 
Frankal-  was  in  a  different  position  from  that  of  the  ordinary 
^°^^  layman.      If  he  was  an  individual,  a  bishop  or  a  parish 

rector,  he  was  rather  what  we  should  now  call  a  *  trustee  '  than  a 
beneficial  owner.  After  his  death,  the  land  would  go,  not  to  his 
children,  but  to  his  successor.  Over  him  was  the  power  of  the 
Church,  which  would  take  care  that  he  did  not  dispoil  the  Church 
of  her  rights.  But  it  was  equally  likely  that  the  land  would  be 
claimed,  not  by  an  individual,  but  by  a  community  or  group  of 
individuals,  such  as  a  monastery  or  a  cathedral  chapter,  whose 
members  might  die,  but  which,  as  a  community,  went  on  forever, 
and  which  could  not,  without  grave  scandal,  be  dispossessed  of 
its  lands.  INIoreover,  it  could  not  be  expected  of  the  bishop, 
the  rector,  or  the  religious  house,  that  he  or  it  should  render 
military  service,  or  plough  and  reap  a  lord's  domain.  The  growing 
recognition  of  the  sanctity  of  the  priesthood  rendered  it  difficult 
for  the  King's  officials  to  impose  burdens  upon  the  Church  land. 


30    A   SHORT   HISTORY  OF   ENGLISH  LAW 

And  so  we  find  recognized  a  fourth  kind  of  tenure,  viz.  the  tenure 
m  frankalmoign,  which  is  really  not  tenure  at  all,  because  there  is 
no  definite  '  service '  to  be  performed  on  pain  of  forfeiture,  but 
which  can,  with  some  difficulty,  be  made  to  square,  in  theory, 
with  the  doctrine  of  tenure. 

Naturally,  the  so-called  *  tenure  in  frankalmoign '  was  ex- 
ceedingly popular  with  those  who  were  so  fortunate  as  to  hold 
land  by  it.  Equally  clear  is  it,  that  the  royal  judges  and  tax- 
collectors  regarded  it  with  dislike,  as  unprofitable  to  the  royal 
power  and  revenue.  It  was  never  admitted  that  all  the  lands 
of  the  Church  were  frankalmoign.  Where  the  possession  was 
so  ancient  that  all  trace  of  its  origin  had  been  lost,  as  in  the  case 
of  the  ordinary  parish  glebe,  or,  perhaps,  the  chapter  lands  and 
those  of  the  long  established  religious  houses,  the  claim  might 
be  admitted  ;  in  other  cases,  it  was  for  the  claimant  to  prove  that 
the  land  had  been  given  to  him  or  his  predecessors  in  '  pure  and 
free  alms,'  without  any  stipulation  for  definite  service.  If  even 
a  fixed  number  of  masses  had  been  promised,  the  land  was  not 
held  in  frankalmoign,  but  by  *  divine  service,'  i.e.  as  a  species 
of  socage.  The  King  won  a  great  triumph  when  it  was  finally 
conceded  that  even  the  endowments  of  the  bishops'  sees  were 
held  by  knight  service,^  not  in  frankalmoign ;  and  that  therefore 
the  bishops  sat  as  barons  in  the  Council  of  the  Magnates.  It  was 
also  clear,  that  if  a  religious  house  acquired  land  which  was  held 
by  the  donor  by  knight  service  or  socage,  the  land  remained 
liable  to  distress  for  failure  to  render  the  services  due  from  the 
donor ;  even  though  the  latter  had  given  the  land  to  the  monas- 
tery in  '  free  alms.'  -  The  tenant  in  frankalmoign  appeared  to 
win  his  greatest  victory  when  it  was  admitted,  by  the  Constitu- 
tions of  Clarendon,''  that  if  an  estate  was  really  proved  to  be 
frankalmoign,  it  was  beyond  the  jurisdiction  of  the  royal  courts 
—  all  that  the  latter  could  claim  was  the  trial  of  the  preliminary 
question  whether  such  was  in  fact  the  case  {Assisa  Utrum). 
But,  in  this  respect,  as  in  others,  the  settlement  of  1164  was  not 
permanent ;  and,  ultimately,  the  royal  courts  succeeded  in  oust- 
ing the  Church  courts  from  all  pleas  concerning  land.     Towards 

'Constitutions  of  Clarrndon,  cap.  XI  (S.C.  139). 

'These  scrvie^i's  wore  'forinscc,'  i.e.  not  rendered  to  the  immediate  lord.  The 
under-tenant  who  had  been  forced  to  render  them  had  a  claim  to  indemnity  against 
the  'mesne  lord,'  who  ought  to  have  satisfied  them. 

» Cap.  IX  (S.C.  139). 


FEUDALISM   AND  LAND  LAW  31 

the  end  of  the  period,  the  Church  sustained  an  even  greater 
loss.  The  policy  of  Mortmain  made  it  difficult  for  her  to  acquire 
lands  at  all.  But  the  full  development  of  that  policy  belongs 
to  the  next  period.^ 

Upon  the  principle  of  tenure,  thus  applied  to  all  ranks  of  society, 
the  royal  judges,  and  their  imitators  in  the  feudal  courts,  began 
Incidents  of  to  build  up  that  elaborate  superstructure  which 
Tenure  ^^^   ^j^   centuries   attempted   to    express,    with    ever 

diminishing  reality,  the  Englishman's  notions  of  property  in 
land.  At  bottom  it  was,  in  theory,  a  cojitract  system  ;  because, 
in  theory,  the  terms  of  each  holding  were  fixed  by  the  original 
grant  to  the  tenant  himself,  his  ancestor  or  predecessor.  In 
practice,  these  terms,  at  any  rate  in  the  absence  of  express  stipula- 
tion, were  settled  by  rules  of  ever  increasing  sharpness,  which 
prescribed  the  '  incidents  of  tenure  '  in  each  case,  i.e.  those 
mutual  rights  and  duties  of  lord  and  tenant  which  attached  to  the 
fact  of  their  relationship.  Some  of  these  '  incidents'  survive, 
at  least  in  theory,  to  the  present  day,  and  are  among  the  first 
things  learnt  by  the  student  of  real  property  law.  Others  have 
become  legally  or  practically  obsolete ;  but  a  brief  mention  of 
them  can  hardly  be  omitted  from  any  account  of  the  history  of 
English  law. 

One  preliminary  caution,  of  great  importance,  should  be 
given.  Tenures,  as  has  been  said,  fall  into  two  unequally 
Common  divided  classes  —  the  free  and  the  unfree.  For 
Locaf  °  the  present  purpose,  the  importance  of  the  distinction 

Custom  \[qq  ijj  i\^Q  fact, that  the  rules  of  the  former  were  settled 

by  the  decisions  of  the  royal  courts,  which  held  good  throughout 
the  realm ;  and  that  they  were,  therefore,  with  rare  exceptions, 
uniform  and  universal.  The  tenant  by  knight  service  could  not 
devise  his  land,  at  least  directly,  whether  it  lay  in  Northumber- 
land or  Essex.  When  the  rules  of  inheritance  once  became 
settled,  the  eldest  son  of  the  socager  succeeded  to  his  father's  land, 
whether  it  was  in  Gloucestershire  or  Devonshire ;  unless  the 
land  were  subject  to  some  well-recognized  exception,  such  as 
that  of  gavelkind  or  burgage.  But  the  tenant  in  villenage  was 
governed,  in  respect  of  his  holding,  by  the  local  custom,  which 
differed  from  manor  to  manor ;  and,  despite  modern  legislation, 

1  The  first  definite  sign  of  the  policy  appears  in  the  Charter  of  1217,  cap.  43 
(S.C.  347).     But  the  full  principle  is  not  enunciated  till  1279  (7  Edw.  I,  st.  II). 


32    A  SHORT  HISTORY  OF  ENGLISH  LAW 

his  successor,  the  copyholder,  is,  in  the  main,  in  the  same  position 
to-day.  Even  the  fact  that  the  King's  courts  at  last,  towards  the 
end  of  the  fifteenth  century,  began  to  protect  the  copyholder's 
rights,  did  not  alter  this  state  of  things ;  for  the  royal  judges,  no 
longer  enjoying  the  freedom  of  their  predecessors  of  the  twelfth 
and  thirteenth  centuries,  deemed  themselves  bound  by  the  mano- 
rial customs,  save  where,  in  rare  cases,  those  customs  were  so 
opposed  to  all  sense  of  fairness  as  to  be  held  manifestly  '  unreason- 
able,' Consequently,  whilst  knight  service,  socage,  and,  in  so 
far  as  it  was  a  tenure  at  all,  frankalmoign,  became  '  common  law 
tenures,'  villenage,  or,  as  it  was  later  called,  '  copyhold^lJias 
always  been  treated  as  a  '  local  and  customary  tenure.'  Never- 
theless, though  with  many  differences  of  detail,  the  local  tenures 
were  framed  on  the  common  law  model ;  and  so  it  is  possible, 
wdth  some  reservations,  to  generalize  about  the  incidents  of 
all. 

Loyalty  to  one's  lord  was  of  the  essence  of  the  feudal  tie  of 
tenure ;  and  it  was  symbolized  in  the  oath_  of  fe^alty  exacted 
Fealty  and  on  the  creation  of  all  estates,  save  possibl}^,  in  frankal- 
Homage  moign.  The  form  which  it  took  at  the  beginning  of 
the  next  period  is  given  in  a  document  attributed  to  the  year 
1323,  and  printed  among  the  Statutes  of  the  Realm. ^  It  is  a 
general  promise  to  observe  the  terms  of  the  relationship ;  and 
refusal  to  make  it  was,  doubtless,  treated  as  a  renunciation  of 
the  tie.  The  ceremony  of  homage  was  rendered  only  to  the 
lord  of  whom  the  tenant  held  his  chief  estate ;  possibly  only 
when  he  held  an  estate  of  inheritance.  It  expressed  a  closer 
and  more  personal  tie ;  ^  and  comprised  a  special  reservation 
of  loyalty  to  the  King. 

It  was  the  symbol  of  lordly  power  to  hold  a  court  or  assembly 
of  vassals;  and  the  tenant  who  refused  to  minister  to  his  lord's 
Suit  of  pride  by  attending  his  summons  was  guilty  of  con- 

^°^^  tempt,   if  not  defiance,  of  his  lord.     Into  the  vast 

question  of  private  jurisdiction  in  England,  we  cannot  enter; 
it  ceased  to  be  of  importance  in  free  tenure  after  the  royal  courts 
were  firmly  established.  But,  for  a  similar  reason,  suit  of  court 
remained,  and  still  remains,  a  liability  of  copyhold  tenure.' 

The  special  importance  of  service  was,  as  we  have  seen,  that 
the  nature  of  it  determined  the  nature  of  the  tenancy.     Any 

'  17  Edw.  II  (,Modus  Faciendi  Homagium  et  Fidelitatem).  '  Ibid. 


FEUDALISM  AND   LAND   LAW  33 

liability  to  military  service  stamped  the  holding  as  tenure  ])er 
77nlitiani,  and  so  on.  As  is  well  known,  it  was  a  marked 
peculiarity  of  English  tenure  that  all  miHtary  service 
was  rendered  to  the  King  alone,  and  could  only  be 
demanded  by  the  King's  writ.  But  when  military  service,  like 
all  other  services,  became  commuted  for  a  money  rent  ('  scutage  ' 
or  '  escuage  '),  it  found  its  way  into  the  pockets  of  the  immediate 
lord,  and  was  distinguished  from  other  money  rents  only  as 
entitling  the  lord  to  the  specially  profitable  incidents  of  knight- 
service  tenure. 

The  most  striking  accompaniment  of  service  is  the  right  of 
the  lord  to  seize  the  chattels  on  the  tenement  to  enforce  render 
^.  of  it.     We  have  seen,^  that  this  is  a  survival  of  a 

Distress 

once  universal  process  of  self-help,  which  has  been 
abolished  in  most  other  cases.  In  the  period  under  review,  it 
was  not  a  complete  remedy  ;  for  the  lord  could  not  sell  the  chattels 
distrained  to  satisfy  his  claim  ;  as  its  name  implies,  '  distress  '  was 
merely  a  means  of  putting  on  pressure.  But  it  was  of  peculiar 
value  to  the  lord  ;  for,  to  a  certain  extent,  it  made  him  indifferent 
to  the  personal  character  of  his  tenant.  If  the  latter  chose  to 
*  sub-infeudate  '  the  land  to  an  under-tenant,  the  lord's  remedy 
was  not,  in  theory,  affected.  The  service  due  to  him  was  'forin- 
sec,'  so  far  as  the  under-tenant  was  concerned.  But  it  could 
be  distrained  for,  all  the  same,  because  it  attached  to  the  land ; 
and  the  remedy  of  the  under-tenant  whose  beasts  had  been  seized 
for  his  immediate  lord's  default  was  to  pay  the  over-lord's  claim, 
and  deduct  the  amount  from  the  '  intrinsec  '  service  which  he 
owed  his  immediate  lord,  or  recover  it  by  a  Writ  of  Mesne. 
Thus  '  rent-service,'  as  distinct  from  other  rent  charged  on  land, 
early  acquired  that  peculiar  security  which  it  has  never  since 
entirely  lost. 

In  addition  to  his  regular  and  stipulated  service,  the  tenant,  as 
evidence  of  his  loyalty,  might  be  called  upon  to  render  occasional 
Aids  and  assistance,  under  _tlm_jiaine-  of  aidSt,  to  his  lord  in 
moments  of  urgency.  As  is  well  known,  the  number 
of  these  moments,  and  the  calls  which  they  made  on  the  tenant's 
purse,  were  subjects  of  keen  dispute.  The  former  point,  at 
least  so  far  as  the  royal  example  was  concerned,  was  settled  by 
the  well-known  clause  of  the   Great   Charter ;  ^  the  latter  by 

1  Ante,  p.  8  =  Cap.  XII  (S.C.  29S). 


{»/ 


34    A   SHORT  HISTORY  OF  ENGLISH  LAW 

statute  early  in  the  next  period.^  The  relief  was  payable  on 
the  succession  of  an  heir  to  his  ancestor's  estate  ;ai^d  is  interest- 
ing as  a  link  in  the  obscure  process  by  which  the  originally 
personal  relationship  between  lord  and  vassal  developed  into  a 
mere  form  of  property.  The  tenant  in  villenage  paid  a  '  fine  on 
descent  ' ;  while  his  lord  was  also  usually  entitled,  under  a  claim 
of  '  heriot,'  to  seize  the  best  beast  or  other  chattel  of  the  dead 
ancestor.  The  amount  of  the  relief  in  knight  serviGe-Jtas  fixed 
^*^  by  the  Great  Charter ;  ^  in  socage  it  was  said,  by  a  so-called 
statute  of  1300,^  that  the  tenant,  on  succeeding,  paid  two  years' 
rent  instead  of  relief.  The  fines  paid  by  the  heir  in  villenage  were 
either  '  arbitrary,'  or  fixed  by  the  local  custom. 

The  most  oppressive  incidents  of  tenure  were  the  right  of 
the  lord  to  the  custody  of  the  person  and  estate  of  the  infant 
^    ,  ..        heir  of  his  deceased  tenant,  and  to  the  disposal  of 

Wardships  ,    ,     .     .  .  „...., 

and  such  heir  ni  marriage.     Originating  in  the  reasonable 

amag  claim  of  the  lord  that  his  dues  of  service  should  not  be 
lost  by  the  inability  of  an  infant  to  render  them,  and  that  an  in- 
fant heiress  should  not,  by  marrying  the  lord's  enemy,  introduce 
a  foe  into  his  household,  these  incidents  rapidly  developed  into 
means  of  extortion.  The  lord  rendered  no  account,  either  of  sur- 
plus rents  or  of  the  money  received  for  his  ward's  hand.  By  an 
unfortunate  wording  of  a  clause  in  the  Great  Charter,^  intended  to 
control  abuses,  the  claim  of  *  marraige '  was  actually  extended  be- 
yond females  to  male  heirs ;  and  the  two  incidents  continued,  in 
theory  at  least,  to  disgrace  the  law,  until  they  were  abolished  in 
1660.^  They  were  peculiar,  apparently,  to  knight-service  tenure ; 
7of~in  socage  the  guardian  (not  the  lord,  but  the  next-of-kin  who 
could  not  inherit)  was  held  strictly  to  account  for  all  profits ;  ^ 
while  there  seems  to  be  little  trace  of  similar  incidents  in  villen- 
age.^    Of  course,  they  had  no  parallel  in  frankalmoign. 

Whether  or  not  the  strict  theory  of  tenure  recognized  the  claim 
of  the  tenant's  heir  to  succeed  to  his  ancestor's  estate,  we  may 

>  3  Edw.  I  (1275)  c.  36  (under-tenants) ;  25  Edw.  Ill  (1352)  St.  V,  c.  11  (tenants 
in  capite). 

«Cap.  II  (S.C.  297). 

'  28  Edw.  I  (Statute  of  Wards  and  Reliefs). 

*  Cap.  6  (S.C.  297). 

«  By  the  12  Car.  II  c.  24. 

«  52  Hen.  Ill  (Marlborough,  1267),  c.  17. 

^  Perhaps  the  '  merchet,'  or  marriage  fine  of  the  villein's  daughter,  may  be 
regarded  as  a  'value  of  marriage.' 


FEUDALISM  AND  LAND  LAW  35 

be  very  sure  that  the  socager  and  the  villein  would  not  have 
submitted  without  a  severe  struggle   to  any  legal  rule  which 
.  attempted  to  deprive  them  of  the  land  which  their 

forefathers  had  ploughed  from  time  immemorial.  The 
very  wording  of  the  custumal  of  1299,  before  alluded  to/  suggests 
that  the  socage  heir  was  with  difficulty  brought  to  recognize 
the  fitness  of  a  '  relief  ' ;  and  that,  in  his  case,  it  was  a  question 
of  the  rules  to  be  followed,  rather  than  any  question  of  the  right 
of  inheritance  generally.  There  can  be  little  doubt,  that  the 
general  English  rule  survives  in  the  gavelkind  principle  of  equal 
division  among  males  in  the  nearest  degree;  and  Glanville 
seems  to  regard  it  as  in  force  for  socage  in  his  day.^  On  the 
other  hand,  no  such  antiquity  consecrated  the  claim  of  the  heirs 
of  military  tenants ;  and  reason  weighed  somewhat  heavily 
against  the  transmission  to  heirs  of  military  fiefs.  Nevertheless, 
it  is  clear  that,  at  least  by  the  time  of  the  Great  Charter,  in- 
heritance of  such  estates  is  fully  recognized  as  normal.  What 
is  more,  the  rule  of  primogeniture  among  males,  not  unreasonable 
for  military  tenure,  early  succeeded  in  establishing  itself  also  for 
socage  tenants,  in  lieu  of  the  old  rule  of  equal  division  among 
males.  Inheritance  in  villeinage  remained,  and  remains,  a 
matter  of  local  custom.  But  the  rule  that  the  grant  of  land 
'  without  words  of  inheritance '  confers  only  a  life  estate,  a  rule 
which  still  prevails,  is  a  significant  reminder  of  the  original 
characteristics  of  tenure. 

Escheat  is  rather  an  inevitable  consequence,  than  an  incident, 
of  the  principle  of  tenure.  When  the  interest,  or  '  estate ' 
J.   .  granted,  or  supposed  to  have  been  granted,  to  the 

vassal  came  to  an  end,  the  land  would  naturally 
return  to  the  lord.  If  the  estate  was  for  life,  it  came  to  an  end  on 
the  death  of  the  man  or  men  for  whose  lives  it  had  been  granted. 
These,  of  course,  need  not  have  been  the  tenant  or  tenants 
themselves ;  the  estate  yur  autre  vie  was  quite  common  in  this 
period.  Where  the  estate  was  inheritable  by  the  tenant's  heirs, 
it  came  to  an  end  when  these  failed.  In  either  case,  the  lord 
resumed  the  land ;  it  was  said  to  '  escheat,'  or  fall  back,  to  him. 
Before  estates  of  inheritance  became  common,  and  especially 
among  the  great  tenants  in  capite  of  the  Crown,  escheats  were  a 

1  Ante,  p.  34. 

»  Lib.  VII,  cap.  3. 


3G    A   SHORT   HISTORY  OF  ENGLISH  LAW 

valuable  source  of  revenue ;  and  the  Crown  employed  regular 
officials  and  held  periodical  enquiries,  or  '  inquests,'  to  discover 
and  enforce  them.  In  later  days,  the  term  'escheat'  was  em- 
ployed strictly  to  designate  the  falling  in  of  estates  through  actual 
failure  of  heirs,  or  through  the  fictitious  failure  ca,used  by  the 
doctrine  of  corruption  of  blood  by  attaint  of  felony.  The  land 
which  went  back  to  the  lord  at  the  end  of  a  life  estate  was  said  to 
'  revert ' ;  and  the  lord's  interest  during  the  running  of  that 
estate  was  called  a  '  reversion.'  But  there  is  no  difference,  in 
principle,  between  the  two  cases ;  the  difference  of  terms  was 
brought  about  by  certain  arbitrary  changes  in  the  law  of  aliena- 
tion. 

This  brings  us,  in  conclusion,  to  a  question  of  first-rate  im- 
portance, to  which  this  period  gives  no  certain  answer.  Might  a 
tenant  alienate  his  holding?  At  the  present  day, 
such  a  question  would  appear  to  be  absurd ;  and  the 
man  who  ventured  to  suggest  a  negative  would  lie  under  a  heavy 
07U{S  of  proof.  In  the  period  with  which  we  are  dealing,  the 
presumption  was  all  the  other  way.  The  peasant  held  his  land  as 
a  member  of  a. group ;  perhaps,  as  has  been  hinted,  it  was  not  a 
definite  area  of  land  at  all,  but  a  '  shifting  severalty,'  i.e.  a  share 
which  changed  from  year  to  year,  or  from  '  course  '  to  '  course  ' 
of  husbandry.  His  co-farmers  would,  naturally,  object  to  the 
introduction  of  a  stranger,  at  any  rate  without  the  full  agree- 
ment of  the  group.  This  is  the  retrait  coiniimnal.  Also  his 
heirs,  who  looked  forward  to  succeeding  to  the  ancestral  claims, 
would  object  to  alienation.  This  is  the  retrait  lig^nager:  prob- 
ably it  affected  the  socager  as  well  as  the  villein.  Finally, 
and  especially  in  the  knightly  tenures,  the  lord  might  strongly 
object  to  a  change  of  vassals ;  there  is  even  some  presumption, 
and,  what  is  more,  evidence,  that  the  tenant  might  object  to  have 
a  new  lord  thrust  upon  him  — ^  to  be  '  attorned,'  or  handed  over, 
to  a  strange  lord.      This  is  the  retrait  feodal. 

Evidently  these  considerations  puzzled  the  authorities  a  good 
deal ;   and  their  attitude  was  hesitating. 

In  spite  of  some  doubts,  the  practice  of  subinfeudation  rapidly 

made  its  way.     By  this  process  the  tenant  did  not,  in  theory, 

Subinfeuda-  impose  upon  his  lord  a  new  vassal,  or  deprive  his 

heir  of  a  fief.     He  merely,  as  a  modern  lawyer  would 

say,  '  sub-let  '  the  land,  and  drew  the  rents  instead  of  cultivating 


FEUDALISM   AND   LAND   LAW  37 

the  soil,  or  collecting  the  peasant's  dues,  on  his  own  account. 
The  ver}^  structure  of  feudalism  must  have  rendered  this  process 
familiar ;  and  even  the  King  seems  to  have  regarded  it  as  a 
matter  of  course.^  Nevertheless,  it  was,  in  fact,  open  to  objec- 
tions, from  the  point  of  view  of  the  original  lord.  It  is  one 
thing  to  have  a  tenant  who  holds  land  '  in_d£in£siie  ' ;  he  is 
there,  his  doings  and  happenings  are  known,  the  '  incidents  ' 
of  his  tenancy  can  be  promptly  claimed.  With  a  tenant  who 
holds  '  in  service,'  it  is  otherwise.  True  the  land  is  there ;  and 
the  beasts  of  the  actual  occupant  can  be  distrained  for 
withholding  of  service.  But  if  it  comes  to  escheat  or  forfeiture, 
the  under-tenant  may  say  that  his  estate  w^as  lawfully  created, 
and  that,  so  long  as  he  renders  the  services  reserved  on  the  crea- 
tion of  his  tenancy,  he  cannot  be  disturbed.  Now  these  services 
may  be  considerably  less  than  the  services  reserved  on  the  original 
grant  —  a  fact  which  will  also  be  productive  of  loss  to  the  over- 
lord in  enforcing  his  claims  of  '  wardship  '  and  '  marriage.'  ]\Iost 
especially  will  this  be  the  case  if  the  sub-grant  has  been  for  an 
estate  of  inheritance ;  for  the  process  may  go  on  indefinitely, 
and  the  original  grantor  may  find  himself  further  and  further 
divorced  from  the  soil.  Nevertheless,  in  spite  of  some  evidence 
of  protest,^  the  right  of  '  su^Hiif eudationj  .a,pp£iars .  to  have  been 
generally  admitted  during  this  period.  Bracton,  in  a  well-known 
passage,^  strongly  denied  that  it  was  wrongful. 

The  total  alienation  of  the  tenant  was  regarded  with  more 
disfavour.  This  was  a  complete  rupture  of  the  feudal  tie,  and, 
in  effect,  deprived  both  lord  and  heir  of  valuable 
rights.  It  was,  probably,  to  this  kind  of  alienation 
that  Glanville  alluded,  in  the  passage  in  which  he  lays  down 
somewhat  severe  restrictions  on  its  exercise.*  He  distinguishes 
between  the  hereditas,oT.inhQnted  estate  of  the  tenant,  and  his 
questum  or  newly  acquired  estate.  In  respect  of  the  latter,  the 
tenant  has  a  fairly  free  hand ;  in  respect  of  the  former,  his  rights 
are  much  more  limited.  He  can  alienate  a  '  reasonable '  part 
of  it  for  proper  purposes,  such  as  the  endowment  of  a  son  or 

1  This  appears  to  be  a  fair  inference  from  the  Inquest  of  Knights  Fees  in  1166 
(Red  Book  of  the  Exechequer).     But  it  is  also  implied  in  Domesday  Book. 

2  Great  Charter  of  1217,  cap.  39  (S.C.  346).     Possibly,  however,  the  clause  refers 
to  substitution. 

^Lib.  II,  cap.  XIX  (1,2), 
*  Lib.  VII,  caps.  1,  2. 


38    A   SHORT  HISTORY  OF  ENGLISH  LAW 

daughter,  the  rewarding  of  faithful  service,  or  even  the  satis- 
faction of  the  claims  of  religion  or  charity.  But,  in  the  latter 
case,  the  alienation  must  be  made  when  the  tenant  is^^m  full 
health ;  Glanville  has  a  strong  suspicion  of  death-bed  gifts. 
Of  course,  the  devise  of  lands,  as  we  understand  it,  was  not  rec- 
ognized in  this  period  ;  probably  because  the  new  doctrines  about 
*  livery  of  seisin  '  made  it  impossible  to  set  up  a  title  dependent 
on  an  oral  or  merely  written  gift.  But  even  the  formal  convey- 
ance to  take  effect  on  death  was  regarded  with  suspicion,  and 
required  confirmation  by  the  heir.^ 

1  Glanville,  Lib.  VII,   1.     'In  extremis  tamen.'     The  language  suggests  that 
the  rule  may  possibly  be  altered  in  the  near  future  ('hactenus'). 


CHAPTER  IV 
IMPROVED  LEGAL  PROCEDURE 

THE  second  great  triumph,  not  unworthy  to  rank  beside 
the  creation  of  a  land  law,  which  the  royal  officials  achieved 
during  this  period,  was  the  establishment  of  a  new  set  of 
royal  tribunals,  with  a  definite  legal  procedure. 

In  order  to  understand  the  greatness  of  this  achievement, 
we  must  once  more  put  from  us  modern  ideas,  and  remember  that 
the  assumption,  now  everywhere  prevailing,  that  the  adminis- 
tration of  justice  is  the  exclusive  function  of  the  Crown  or  State, 
is  the  result  of  a  long  period  of  bitter  struggle,  nowhere  better 
illustrated  than  in  English  legal  history.  In  so  far  as  there  was 
any  regular  '  administration  of  justice '  at  all  in  England  in 
the  latter  half  of  the  eleventh  century,  it  took  place  in  the 
local  moots  of  the  Hundred  and  the  Shire,  possibly, 

Local  Moots     ,  •        i       i      n      i.    i         i  o    %        c 

in  trmmg  matters,  m  the  hail  or  the  thegn.  bo  tar  from 
desiring  to  abolish  the  jurisdiction  of  the  local  moots,  the  kings, 
at  first  at  any  rate,  were  constantly  insisting  that  they  should 
be  held  as  of  old.^  In  the  Laws  of  Cnut,  it  is  formally  laid 
down  that  no  one  is  to  bother  the  King  with  his  complaints, 
so  long  as  he  can  get  justice  in  the  Hundred.^  Even  before  the 
Conquest,  the  land  was  covered  with  thegns,  judices  regis  as 
they  are  called  in  the  Leges  Henrici;  ^  and  the  latter  title 
suggests  that  they  exercised  a  certain  amount  of  local  jurisdiction. 
Church  After  the  Conquest,   as  has  been  said,  the  Church 

Courts  courts    rapidly    developed    a    large    business,    both 

*  criminal '  and  '  civil  ' ;  they  dealt  with  such  offences  as,  not 
being  recognized  as  wrongs  by  the  lay  tribunals,  were  yet,  in  the 
view  of  the  Church,  sins  against  the  laws  of  God.  Examples 
are,  perjury,  fornication,  usury,  defamation,  neglect  to  pay  tithes 

^E.g.  S.C.  84  (William  I).  104  (Henry  I). 

*Cnut,   II,    17    (Liebermann,   320).     For  an  earlier  enunciation  of  the  same 
principle,  see  Edgar,  III,  2  (Liebermann,  200). 
'Art.  29  (Liebermann,  563). 


40    A   SHORT   HISTORY   OF  ENGLISH  LAW 

and  other  dues  of  the  Church ;  the  Church  courts  dealt  also 
with  all  questions  (save  one)  ^  of  legitimacy  or  divorce.  Then  too. 
Feudal  there  were  the  feudal  courts,  which,  feeble  as  they 

Courts  "svere  beside  some  of  their  great  models  on  the  Con- 

tinent, yet  flourished  in  large  numbers  during  the  whole  of 
Courts  this  period.     Finally,   the  charters  granted  to  mer- 

Merchant  chant  gilds  and  burgesses  expressly  or  by  implication 
recognized  the  existence  of  market  and  other  courts,  in  which  the 
Law  Merchant  and  not  the  Common  Law  was  administered.^ 
Even  the  King's  own  judges  had  eventually  to  admit  that  to  every 
market  a  court  of  piepowders  (pieds  pouches)  was  appendant  as  of 
common  right.  It  was  only  in  the  face  of  keen  rivalry  that  the 
royal  jurisdiction  won  its  way ;  and  its  ultimate  triumph,  com- 
plete and  unquestioned,  over  its  many  rivals,  is  the  result  of  its 
inherent  superiority,  and  a  striking  proof  of  the  ability  of  the 
men  who  organized  it.  Again  we  need  not  suppose  their  motives 
to  have  been  very  lofty.  Legal  business  has,  from  the  beginning 
of  time,  been  profitable  —  to  those  who  have  conducted  it ;  be- 
cause it  is  concerned  with  things  that  touch  men's  passions  very 
deeply,  and  because  men  are  willing  to  pay,  and  pay  highly,  for 
wisdom  and  skill  in  the  conduct  of  it.  The  real  merits  of  the 
Norman  lawyers  were,  not  altruism,  but  ability,  energy,  and 
enthusiasm  for  their  work. 

One  of  the  first  definite  steps  taken  was  to  develop  that  branch 
of  the  royal  claims  which,  as  has  been  said,^  was  the  beginning 
Criminal  of  criminal  law  in  the  modern  sense.  By  the  famous 
rocedure  Asslse  of  Clarendon,^  issued  in  1166,  there  was 
substituted  for  the  ancient  and  somewhat  casual  '  hue  and  cry,' 
a  regular,  formal  '  presentation,'  or  indictment,  before  the 
King's  justices  and  sheriffs,  by  twelve  sworn  men  from  the 
Hundred  and  four  from  the  township,  of  robbers,  murderers, 
thieves,  and  their  accomplices.  Apparently,  a  very  full  shire- 
moot  was  to  be  assembled  for  the  purpose,  and  a  sort  of  pre- 
liminary enquiry  held  by  the  sheriff,  who  was  to  remand  under 

*  The  exception  was  the  well-known  'plea  of  special  bastardy,'  which  involved  the 
question  of  post-legitimated  children.  The  King's  Courts  could  not  trust  the 
Church  to  accept  the  famous  clause  of  the  Statute  of  Mcrton  (cap.  9). 

*  The  records  already  edited  by  Professor  Gross  (S.S.  Vol.  23)  1238  (Torksey 
Piepowders.  App.  I),  show  that  such  courts  were  in  working  order  as  early  as  the 
first  half  of  the  thirteenth  century. 

'  Ante,  p.  10. 

*  Given  in  full  in  Stubbs,  S.C,  at  p.  140. 


IMPROVED   LEGAL   PROCEDURE  41 

custody  or  bail  all  against  whom  there  seemed  to  be  a  priind 
facie  ease,  to  await  the  arrival  of  the  justices.  The  accused 
were  then  to  be  given  a  rough  sort  of  trial.  If  they  had  been 
hitherto  of  good  repute,  they  were  allowed  to  clear  themselves 
by  the  ordeal  of  water  ;  if  they  were  of  bad  fame,  or  if  they  failed 
at  the  ordeal,  they  were,  apparently,  mutilated  and  turned  adrift, 
their  chattels  being  forfeited  to  the  Crown.  Ten  years  later, 
after  the  Inquest  of  1170^  had  revealed  the  iniquities  of  the 
sheriffs,  the  process  was  made  more  definite  and  severe  by  the 
Assise  of  Northampton  in  1 1 76.^  To  the  list  of  offences  indictable 
under  the  Assise,  were  added  treason,  arson,  and  false  coining. 
Even  if  the  accused  satisfied  the  ordeal,  he  was,  nevertheless,  to 
give  pledges  for  his  future  good  behaviour ;  if  his  character  was 
bad,  he  was  even  to  abjure  the  realm,  though  he  might  take  his 
goods  with  him.^  If  he  failed  at  the  ordeal,  or  was  not  entitled 
to  it,  he  was  to  lose  both  hand  and  foot,  be  banished  the  realm, 
and,  of  course,  forfeit  his  goods.  As  will  shortly  appear"*  the 
disuse  of  the  ordeal  introduced  the  modern  method  of  trial  by 
jury  for  criminal  cases,  and  thus  completed  the  scheme  of  criminal 
procedure  in  outline.  But  the  Assises  of  1166  and  1176  definitely 
marked  off  the  '  felony  '  or  public  offence  entailing  forfeiture  of 
goods  and  banishment,  not  only  from  the  mere  private  wrong, 
but  also  from  those  minor  misbehaviours,  or  misdemeanours, 
which  were  punished  in  the  local  moots.^  These  appear  to  have 
remained  in  their  old  vague  position  until  the  later  development 
of  the  local  Justices  of  the  Peace,  when  they  became  subject  to 
true  criminal  prosecution.  By  the  end  of  the  twelfth  century, 
conviction  of  felony  worked  a  forfeiture,  not  only  of  chattels  but 
of  the  offender's  land.  But,  though  King  John  had  claimed 
otherwise,^  the  forfeiture  of  land  did  not,  save  in  the  case  of 
treason,  go  to  the  Crown,  but,  as  an  '  escheat,'  to  the  tenant's 
immediate  lord ;  subject  to  the  royal  right  of  '  year,  day,  and 
waste.'  ^ 

1  S.C.  147.     (Note  the  reference  in  art.  5  to  the  Assise  of  Clarendon.) 

2  S.C.  150. 

'  Art.  1.  There  is  a  puzzle  here.  If  the  accused  was  of  bad  fame,  he  ought  not 
to  have  been  allowed  to  go  to  the  ordeal  at  all.     (See  Assise  of  Clarendon,  art.  12.) 

*Post,  pp.  51,  52. 

*  Assise  of  Clarendon,  art.  5  (S.C.  144). 

6  Magna  Carta,  cap.  32  (S.C.  300). 

^  I.e.  the  right  of  the  Crown  to  wreak  its  vengeance  on  the  offender  by  plunder- 
ing his  land  for  a  year.  The  right  was  usually  bought  off  by  the  lord  who  claimed 
the  escheat. 


42    A  SHORT  HISTORY  OF  ENGLISH  LAW 

In  the  matter  of  private  disputes,  the  royal  officials  achieved 
their  revolution,  partly  by  putting  still  further  limits  to  extra- 
CivU  judicial  procedure,  partly  by  tempting  the  litigants, 

Procedure  with  offers  of  superior  remedies,  to  resort  to  the  royal 
jurisdiction. 

The  efforts  of  the  later  English  kings  appear  to  have  been 
successful  in  restricting  the  feud  to  cases  of  personal  violence, 
including  theft.  In  such  cases,  not  unnaturally, 
the  lust  of  vengeance  was  keenest ;  and,  under  the 
name  of  an  appeal,  the  blood  feud,  reduced  to  order  and  system, 
and  limited  to  the  parties  immediately  interested,  remained,  at 
least  until  Bracton's  day,  the  ordinary  remedy.^  The  introduc- 
tion of  true  criminal  procedure,  just  described,  set  up  a  very 
powerful  rival  of  the  private  '  appeal  ' ;  for,  as  will  be  remem- 
bered, the  '  felonies  '  of  the  Assises  of  Clarendon  and  Northamp- 
ton comprised  just  those  very  offences  of  violence  which  were 
the  ordinary  subject  of  appeals.  And,  inasmuch  as  the  conse- 
quences of  a  successful  appeal  were  much  the  same  as  those  of  a 
criminal  prosecution,  viz.  death  or  mutilation  of  the  offender, 
and  forfeiture  of  his  land  and  goods,  it  was  obvious  that  appeals 
and  indictments  tended  to  become  alternative  methods  of  proce- 
dure for  the  same  offences.  In  fact,  the  well-known  expression 
*  appeal  of  felony  '  is  almost  proof  conclusive  of  the  common 
ground ;  though  whether  the  term  '  felony  '  itself  originated 
with  the  royal  officials  or  in  popular  usage,  seems  to  be  an  in- 
soluble problem. 

The  chapters  in  Bracton's  book,  just  alluded  to,  show  pretty 
clearly  the  steps  taken  by  the  royal  judges  to  discredit  appeals 
Restrictions  and  substitute  for  them  the  newer  process  of  indict- 
on  Appeals  u^gnt.  Here  again,  the  motive  is  obvious.  No  doubt 
it  was  a  good  thing  to  put  down  what  was,  in  fact,  private  war ; 
it  was  still  better,  from  the  point  of  view  of  the  royal  judge,  to 
secure  the  offender's  goods  for  the  Crown.  And  so  the  man  who 
was  '  appealed,'  or  challenged,  was  encouraged  to  apply  to  the 
royal  judges  on  every  kind  of  side  issue.  He  might  plead  every 
sort  of  objection,  or  exceptip,  that  he  could  think  of,  e.g.  that  the 
'  hue  and  cry  '  had  not  been  properly  conducted,  that  the  '  words 
of  appeal,'  or  formal  accusation,  had  not  been  pronounced,  or 

'  Lib.  Ill,  cap.  19-34.  The  appeals  mentioned  by  Bracton  arc  those  of  homicide, 
mayhem,  false  imprisonment,  robbery,  arson,  rape,  and  larceny. 


IMPROVED  LEGAL  PROCEDURE         43 

were  wrong  in  some  petty  detail,  that  the  accuser,  or  '  appellor,' 
did  not  show  his  wounds  to  the  coroner,  that  the  demand  was  a 
stale  one,  or,  generally,  that  it  had  been  put  forward  '  of  hatred 
an^  malice '  {de  odio  et  atid).  Thereupon  the  royal  judges 
would  hold,  by  a  process  to  be  later  alluded  to,  a  sort  of  prelimi- 
nary enquiry  into  the  truth  of  the  '  exception  '  or  excuse ;  and  if 
the  accused,  or  '  appellee,'  was  successful  in  this  enquiry,  the 
appeal  would  be  sternly  put  down  by  the  King's  officers.  A 
somewhat  obscure  passage  in  the  Great  Charter  of  1215^  is  now 
generally  construed  as  a  promise  by  the  King  that  an  appellee 
shall  in  the  future  be  entitled,  gratuitously  and  as  a  matter  of 
right,  to  an  inquest  de  odio  et  atid.  If  this  view  be  correct,  and 
the  clause  was  observed,  it  is  tolerably  clear  that,  by  the  begin- 
ning of  the  thirteenth  century,  an  appellee  who  wished  to  avoid 
battle  could  do  so.  Another  significant  passage  in  Bracton  ^ 
suggests,  that  if  the  King's  itinerant  justices  came  into  the 
county  after  the  commission  of  the  alleged  offence  and  before 
the  raising  of  the  appeal,  the  right  of  private  vengeance  was  sus- 
pended until  the  alleged  offender  had  stood  his  trial  at  the  King's 
suit.^  If  this  was  so,  we  can  well  understand  that  the  *  appeal,' 
though  in  theory  not  abolished  until  1819,^  was  practically 
becoming  obsolete  at  the  end  of  the  thirteenth  century. 

The  great  alternatives  offered  to  the  litigant  for  the  older 
Alternative  remedies  of  the  popular  tribunals  were  the  writ  of 
Remedies       summons  and  trial  by  jury. 

The  writ,  or  breve,  as  its  names  imply,  is  a  short  written 
document ;  but,  pre-eminently  and  almost  universally,  a  short 
Writ  of  written  command  of  the  King.     In  the  great  majority 

Summons  yf  early  cases,  it  was  addressed  to  a  royal  official, 
and  was  merely,  as  we  should  say,  an  administrative  order. 
At  first,  it  was  used  for  all  kinds  of  purposes,  not  specially 
connected  with  litigation ;  the  King  summoned  his  army  and  his 
Great  Council  by  writ,  bade  his  officials  levy  taxes  by  writ,  and 
so  on.  But,  very  soon  after  the  Conquest,  we  begin  to  see  writs 
issued  from  the  royal  Chancery  for  the  purpose  of  influencing  legal 

'Cap.  36(S.C.  301). 

2  Lib.  Ill,  cap.  24,  2  (fo.  145). 

'  On  the  other  hand,  it  is  clear  from  later  law  that  acquittal  at  the  King's  suit 
was  no  bar  to  an  appeal. 

*  After  its  well-known  dramatic  revival  in  Rex  v.  Thornton.  The  abolishing 
statute  is  59  Geo.  Ill,  c.  46. 


44.     A   SHORT   HISTORY  OF  ENGLISH  LAW 

proceedings;  and,  what  is  even  more  snggestive,  we  find  that 
these  writs  are  '  purchased  '  (probably  at  substantial  fees) 
by  litigants  themselves.     What  were  the  attractions? 

In  the  first  place,  they  applied  to  the  accused  person  a  stronger 
pressure  than  any  that  could  be  brought  to  bear  without  them. 
The  summons  by  the  party  aggrieved  was  probably 
a  very  formal  and  complicated  affair,  delivered  by 
word  of  mouth  in  the  presence  of  witnesses ;  ^  and  any  flaw  in 
it  probably  justified  the  accused  in  treating  the  proceedings 
with  contempt.  Even  if  it  were  correctly  delivered,  with  proper 
words  and  at  a  proper  time  and  place,  it  might  prove  inefficacious  ; 
and  the  recent  restrictions  on  the  right  of  distress,  previously 
alluded  to,  rendered  it  dangerous  for  the  accuser  to  take  the  law 
into  his  own  hands.'  But  the  writ  of  summons,  addressed  to  the 
sheriff,  bade  that  official  relieve  the  accuser  (or  '  plaintiff  '  as  we 
may  now  call  him)  of  the  fruitless  task  of  trying  to  getjbbe  de- 
fendant before  the  court;  and  , directed  ^m  (the  sheriff)  to 
summon  the  defendant  '  by  good  summoners.'  Now  it  is  one 
thing  to  disobey  the  summons  of  a  private  person ;  and  quite 
another  to  disobey  the  summons  of  the  King.  And  though,  in 
later  times,  the  curious  hesitation  of  a  primitive  tribunal  to 
proceed  in  the  absence  of  a  defendant  still  allowed  much  scope 
for  evasion,  it  is  quite  clear  that  the  royal  official  had  means 
of  compelling  attendance  which  were  not  exerciseable  directly 
by  the  private  litigant. 

But  a  second  and  even  greater  service  was  performed  by  the 
new  writ-procedure.     Hitherto,   the  definition  of   offences  had 

_  ^  . .  been  left  to  the  '  doomsmen '  of  the  court,  in  whose 

Definition  i  i- 

memory  was  supposed  to  lie  a  store  of  mimemorial 

wisdom.     There  were   no   written   records ;    nothing  to   which 

the  aggrieved  party  could  turn,  to  see  whether  the  court  would 

give  him  a  remedy.     Now,  he  knew  that  if  he  could  get  his 

complaint  described  in  a  royal  message,  he  could  hardly  be  met 

by  the  defence  that  such  complaint  '  disclosed  no  cause  of  action.' 

Doubtless  there  would  remain  scope  for  discussion,  as  to  whether 

'  The  causes  of  the  formal  and  saero-sanct  character  of  early  legal  procedure  are  : 

(1)  The  nooessity  for  relying  on  the  memory  before  the  introduction  of  writing; 

(2)  the  ignorance  of  primitive  litigants,  who  cannot  be  trusted  to  distinguish  be- 
tween spirit  and  letter. 

'  These  restrictions  culminated  in  the  reign  of  Henry  II,  in  the  action  of  'replevin.' 
(Glanville,  XII,  12,  15.)     The  date  is  significant. 


IMPROVED   LEGAL  PROCEDURE         45 

the  plaintiff  could  bring  the  defendant  within  the  terms  of  the 
writ.  But  it  was  a  great  step  gained  to  have  it  declared,  or  at 
least  implied,  that,  if  the  facts  were  as  alleged,  the  plaintiff  had  a 
good  ground  of  complaint ;  and  this  result  was  achieved  when  it 
was  clear  that  any  one  could  have,  as  of  course,  a  writ  of  Debt,  or 
Trespass,  or  the  like. 

That  this  point  had  been  reached  before  the  end  of  the  twelfth 
century,  is  clear  from  Glanville's  famous  treatise.  It  is  obvious 
The  Regis-  that  this  book  is  speaking  throughout  of  well-estab- 
ter  of  Wnts  \[^\^q^  procedure,  open  to  any  litigant  on  payment  of 
the  proper  fees.  It  is  even  possible  to  classify  its  examples. 
They  are  either  writs  '  original,'  i.e.  writs  destined  to  com- 
mence legal  proceedings,^  or  '  judicial,'  such  as  are  merely 
incidental  to  the  carrying  on  of  proceedings  already  begun.^  The 
latter  are,  it  may  be  said,  '  mere  machinery.'  The  former,  when, 
in  course  of  time,  they  were  collected  into  a  Register,  of  which 
more  or  less  correct  copies  were  in  circulation,  really  became  a 
dictionary  of  the  Common  Law.  Even  the  so-called  *  preroga- 
tive '  writs,  which  were  only  issued  by  special  leave  of  the  court, 
shared  this  character  ;  ^  because,  if  satisfied  that  a  case  has  arisen 
to  which  they  are  applicable,  the  Court  would  certainly  allow 
them  to  issue.  The  invention  of  writs  was  really  the  making  of 
the  English  Common  Law;  and  the  credit  of  this  momentous 
achievement,  which  took  place  chiefly  between  1150  and  1250, 
must  be  shared  between  the  officials  of  the  royal  Chancery, 
who  framed  new  forms,  and  the  royal  judges,  who  either  allowed 
or  quashed  them.  Before  the  end  of  the  thirteenth  century, 
the  stream  of  new  writs  began  to  run  dry.  As  we  shall  see, 
an  attempt  was  made  to  revive  it  in  a  famous  statute  of  1285  ;  ^ 
but  the  effort  was  not  wholly  successful.  Other  methods  of  de- 
claring new  law  took  the  place  of  the  Register  of  Writs. 

The  need  of  a  new  method  of  trial  was,  at  the  beginning  of 
the  twelfth  century,  quite  as  urgent  as  a  new  method  of  summons. 
Old  Roughly  speaking,  the  old  English  courts  knew  of  three 

of  Trial  methods  ;  and  all  three  were,  obviously,  unworthy  of  a 

1  E.g.  the  'Writ  of  Right'  (Lib.  I,  6). 

^E.g.  the  'Writ  of  View'  (Lib.  II,  3).  In  later  days,  these  were  issued  by  the 
court  having  charge  of  the  case,  not  by  the  Chancery. 

3  The  distinction  appears  in  the  Provisions  of  Oxford  (Chancellor's  Oath,  S.C. 
389). 

*  Statute  of  Westminster  the  Second  (13  Edw.  I,  c.  24). 


46    A   SHORT  HISTORY  OF  ENGLISH  LAW 

civilized  system  of  justice.  The  accused  against  whom  no 
suspicion  rested,  was  entitled  to  wage  his  law,  i.e.  to  get  a  proper 
number  of  his  friends  (the  number  varying  with  his  social  rank) 
"to  swear  in  a  prescribed  form,  and  '  with  united  hand  and  mouth/ 
that  he  was  innocent.  This  process,  which  probably  dates 
back  to  the  days  when  the  kindred  of  the  accused  were  prepared 
to  fight  the  '  suit '  or  supporters  of  the  accuser,  was  rapidly 
becoming  a  farce,  as  the  reality  of  its  meaning  became  lost.  In 
the  next  period,  if  a  defendant  could  prove  that  he  was  entitled 
to  resort  to  it,  his  opponent  usually  gave  up  the  case  as  hopeless. 
There  was,  however,  no  direct  attempt  to  abolish  it  in  this  period, 
save  in  the  case  of  a  man  indicted,  under  the  Assises  of  Clarendon 
and  Northampton,  at  the  King's  suit.  Such  a  person  could  not 
wage  his  law.^ 

Neither,  in  any  case,  could  the  man  against  whom  lay  a  pre- 
sumption of  guilt,  e.g.  the  man  who  was  taken  red-handed,  or 
on  whom  the  stolen  property  was  found,  w^age  his  law.  If  such  a 
man  were  not  prepared  to  fight  his  accuser,  his  only  alternative 
was  a  resort  to  the  ordeal,  i.e.  to  invoke  a  miracle ;  and,  inas- 
much as  the  belief  in  miracles  to  order  was  dying  out,  even  in  the 
twelfth  century,  it  gradually  became  clear  that,  in  the  absence  of 
collusion,  a  resort  to  the  ordeal  practically  meant  certain  con- 
demnation. Moreover,  the  ordeal  system  could  not  be  worked 
without  the  active  aid  of  the  Church  ;  and  the  Church  definitely 
abolished  the  judicial  ordeal  at  the  Lateran  Council  of  1216. 

There  remained  then,  apart  from  some  special  cases,  such 
as  trial  by  charters  and  trial  by  official  witnesses,^  only  the 
ancient  resort  of  trial  by  battle,  the  last  formal  survival  of  the 
blood  feud  ;  and  this,  as  we  have  seen  in  the  case  of  the  *  appeals,' 
the  royal  judges  were  striving,  might  and  main,  to  put  down. 
It  is  true  that,  in  their  famous  procedure  of  the  Writ  of  Right, 
they  virtually  legalized  it  under  the  name  of  the  duel,  or  judicial 
combat ;  ^    but,  as  we  shall  see,  before  very  long,  they  found  a 

•  The  curious  expression  '  wager  of  law '  seems  to  be  due  to  the  fact  that  the 
accused  gave  pledges  (vadia)  to  appear  with  his  'oath-helpers'  on  a  given  day. 

'  E.g.  where  the  accused  relied  upon  direct  proof  of  title  by  royal  gift,  or  whore 
he  had  bought  the  disputed  article  in  open  market  under  the  provisions  of  William's 
Law  (Liebermann,  487). 

'  It  appears  to  be  orthodox  to  deny  the  connection  between  the  feud  and  the 
judicial  combat.  But  may  not  the  latter  have  been  simply  a  later  and  more  humane 
stage  of  the  former  ?  The  fact  that  the  Conqueror  seems  to  have  had  some  difficulty 
in  persuading  his  subjects  to  accept  it  (W'ill.  I,  1  ;  art.  6)  seems  merely  to  point  to 
the  fact  that  the  English  clung  to  the  rougher  joys  of  a  less  formal  scramble. 


IMPROVED   LEGAL  PROCEDURE         47 

substitute  for  it,  though  the  Writ  of  Right  itself  was  not  formally 
abolished  till  the  year  1833.  This  substitute  was  the  still  more 
famous  trial  by  jury. 

A  jury  is,  as  the  word  implies,  a  body  of  sworn  men.  But 
not  all  bodies  of  sworn  men  are  juries,  in  the  technical  sense 
of  the  word.  The  oath-helpers  of  the  *  wager  of  law,' 
of  which  we  have  just  spoken,  were,  obviously,  sworn 
men ;  but  they  were  not  a  trial  jury,  because  they  simply  testified 
to  the  truth  of  the  accused's  denial.  Neither  are  witnesses,  in 
the  modern  sense,  though  they,  too,  are  sworn,  a  trial  jury ; 
and  for  a  similar  reason.  The  doomsmen  of  the  popular  moots 
may,  very  possibly,  have  taken  some  oath ;  but  they  were  a 
tribunal,  not  a  method  of  trial.  To  find  the  origin  of  trial  by 
jury,  we  must  turn,  not  to  ancient  popular  custom,  but  to  royal 
privilege. 

In  the  later  Roman  Empire,  the  Imperial  Treasury  had  often 
found  itself  at  a  loss  in  dealing  with  fiscal  questions  in  the  prov- 
inces. It  was  not  unnatural  that  the  imperial  claims  should 
often  be  met,  especially  in  districts  remote  from  centres  of 
administration,  with  professions  of  ignorance  very  hard  to  dis- 
prove. Was  a  particular  farm,  or  was  it  not,  part  of  the 
property  of  a  deceased  person  who  had  bequeathed  all  his  belong- 
ings to  Caesar?  To  solve  this  and  similar  problems,  the  im- 
perial officials  used  to  seize  upon  a  certain  number  of  the  most 
responsible  persons  in  the  neighbourhood,  and  compel  them  to 
find  an  answer.  The  privilege,  under  the  name  of  '  inquest,' 
passed  to  the  Frankish  emperors,  Charles  the  Great  and  his 
successors,  from  them  to  the  Norman  dukes  who  conquered  an 
outlying  province  of  the  Frank  Empire,  from  the  Norman  dukes 
to  the  English  kings.  It  was  at  first  intensely  unpopular; 
and  not  unnaturally,  for  it  was  used  mainly  as  an  engine  to 
extort  information  which,  it  was  easily  foreseen,  would  lead 
to  taxation.  The  '  inquests  '  which  resulted  in  the  compilation 
of  Domesday  Book  made  a  vivid  and  unfavourable  impression 
on  the  country.  A  similar  effect  was  produced  by  the  inquests  of 
1166  and  1170,  before  alluded  to.^  Even  to  this  day,  the  word 
'  inquisitorial  '  bears  the  burden  of  historical  unpopularity. 

A  new  turn  was  given  to  the  royal  privilege  when  the  royal 
officials  began  to  use  it  for  the  decision  of  private  disputes,  and 

1  Ante,  pp.  40,  41. 


48    A   SHORT   HISTORY  OF  ENGLISH  LAW 

especially  for  disputes  about  land.  By  the  common  law  of  feud- 
alism, such  disputes  were  settled  in  the  court  of  the  lord  of  both 
The  Jury  in  disputants.  Properly  speaking,  the  verdict  ■  or  judg- 
Law  Suits  nient  should  have  been  found  by  the  'pares  curtis,  or 
other  vassals  of  the  lord,  and  pronounced  by  the  lord's  mouth. 
This  plan  was  adopted  in  more  than  one  of  the  big  lawsuits  of 
the  early  twelfth  century;  and,  in  the  famous  clause  of  the 
Great  Charter,  so  long  and  so  profoundly  misunderstood,  it 
was  again  asserted  as  a  fundamental  principle  of  justice.^ 

But  in  fact  we  find,  from  the  earliest  years  of  the  twelfth 
century,  that  the  King  was  using  another  method  to  decide  dis- 
putes between  his  tenants  in  capite.  In  the  year  1101,  Rollo  of 
Avranches  and  the  Abbot  of  Abingdon  were  disputing  the  title 
to  three  virgates  of  land  in  Oxfordshire.  The  King,  instead  of 
summoning  his  Great  Council,  sent  a  writ  to  Hugh  of  Buckland 
(?  sheriff  of  Berks)  and  the  sheriff  of  Oxford,  bidding  the  men 
of  the  two  counties,  '  on  the  part  of  the  King,'  say  the  truth  as 
to  the  title  to  the  three  virgates.^  In  the  year  1122,  a  dispute 
between  the  monks  of  St.  Stephen  of  '  Brideton  '  and  the  tenants 
of  the  royal  manor  of  Bridport  was,  on  the  King's  command, 
referred  to  a  sworn  jury  of  sixteen  men  of  the  neighbourhood, 
who  found  that  the  land  in  dispute  belonged  to  the  manor 
of  Brideton,  granted  to  the  monks  by  William  the  Con- 
queror. ^ 

The  judicial  activity  of  the  reign  of  Henry  II  comprised 
a  vast  development  of  the  jury  trial.  At  some  unknown  date. 
Reforms  of  the  King,  while  admitting  the  principle  of  feudal 
Henry  II  jurisdiction  in  land  suits,  added,  as  a  new  rule  of 
administration,  that  no  suit  touching  a  freehold  should  be 
commenced,  even  in  a  feudal  court,  without  the  royal  writ.* 
There  was,  probably,  some  colour  for  this  startling  innovation 
in  the  historic  oath  of  Sarum,  by  which  the  Conqueror  had 
striven  to  make  himself,  not  merely  overlord,  but  direct  lord, 
of  all  land-holders  in  the  kingdom.  Obviously,  it  gave  the 
royal  officials  notice  of  all  land  suits,  and  thus  provided  them 

^  Cap.  39  (S.C.  301).  The  judgment  by  peers  survives  in  the  trial  of  a  peer  in 
the  House  of  Lords. 

'  Bigelow,  Placita,  Anglo-Normannica,  p.  74. 

^Ihid.,  p.  120. 

*  Glanville,  Lib.  II,  cap.  15.  There  was  an  exception  for  a  purely  clerical 
dispute  about  a  frankalmoign  estate. 


IMPROVED   LEGAL  PROCEDURE  49 

with  abundant  opportunities  of  further  interference,  which  they 
were  not  slow  to  use. 

One  of  the  most  famous  and  sweeping  of  these  interferences 
was  that  known  as  the  Grand  Assise.  The  defendant  against 
Grand  whom  a  Writ  of  Right  had  been  issued,   might,   if 

Assise  j^g  pleased,  instead  of  running  the   risks   of  battle, 

apply  to  the  King  for  a  counter-writ  which  bade  the  sheriff 
summon  sixteen  knights  of  the  county  wherein  the  disputed 
land  lay,  to  recognize,  upon  their  oaths,  which  of  the  parties 
had  the  greater  right. ^  Thereupon,  the  proceedings  towards 
battle  in  the  lord's  court  were  peremptorily  stopped  by  the 
sheriff;    and  the  dispute  remitted  to  the  jurj'  of  sixteen.^ 

"Another  innovation  of  the  same  reign  was  equally  drastic. 
The  proceedings  on  the  Writ  of  Right  were  apt  to  prove  dilatory. 
Petty  by   reason   of  the   number   of    '  essoins,'    or   excuses 

Assises  allowed  to  the  defendant,  as  well  as  by  '  vouchers 

to  warranty.'  It  would  have  been  unsportsmanlike  to  expect 
a  man  to  fight  while  he  was  in  poor  health,  or  to  deprive  him 
of  his  land  because,  being  absent  on  the  King's  business,  he 
failed  to  respond  to  the  challenge.  Again,  it  had  been  recognized 
in  England,  from  very  early  times,  that  one  of  the  best  ways 
of  defending  a  challenged  title,  either  to  goods  or  land,  was  to 
call  in  the  help  of  the  person  from  whom  the  defendant  had 
received  tliem.  This  person  might  either  have  expressly  guar- 
anteed the  defendant's  title ;  or  he  might  have  been  held  by 
the  law  to  have  done  so.  In  either  case,  he  was  bound  to  inter- 
vene and  take  up  the  burden  of  the  defence ;  unless  he  himself, 
in  turn,  '  vouched  to  warranty  '  his  vendor,  and  so  on. 

But  all  this  caused  delay ;  and,  in  the  meantime,  who  was 
to  hold  the  land?  This  question  the  royal  justices  took  upon 
themselves  to  settle;  presumably  on  the  ground  that  the  King 
must  know  to  whoni-to  look  for  military  service  and  taxes. 
Accordingly,  a  brief  inquest  on  some  simple  question  of  fact 
was  held  bj^^sworn  men ;  and,  according  to  the  result,  interim 
possession  was  awarded.  Generally  speaking,  the  principle 
adopted  was  that  of  the  status  quo.  By  the  Assise  of  Mort 
d'Ancestor,^  the  heir  of  the  person  who  had  actually  been  in 

*  Glanville,  Lib.  II,  cap.  11.     Four  knights  were  chosen  directly  by  the  sheriff; 
and  these  elected  the  other  twelve. 
^  Ibid.,  cap.  8. 
» Ibid.,  Lib.  XIII,  capp.  2-18. 


50    A  SHORT  HISTORY  OF  ENGLISH  LAW 

possession  at  his  death  was  given  possession.  By  the  Assise  of 
Novel  Disseisin,^  the  man  who  had  but  just  ejected  his  peaceful 
opponent  was  compelled  to  hand  back  the  land.  By  the  Assise 
d'Arrein  Presentment,-  the  patron  who  had  presented„the  last 
incumbent  was  given  power  to  fill  the  existing  vacancy.  All 
was  '  without  prejudice  '  (as  a  modern  lawyer  would  say)  to 
the  ultimate  decision  of  the  '  right  '  or  title ;  but,  in  fact,  the 
delay  and  expense  of  trying  the  '  right  '  or  ultimate  title,  were 
so  great,  that  an  award  on  a  possessory  assise  frequently  settled 
the  dispute  for  ever.  This  fact,  naturally,  tended  to  increase 
the  popularity  of  the  possessory  assises,  and,  through  them,  to 
draw  a  sharp  line  between  '  right '  and  mere  possession,  or,  as 
it  was  called,  '  seisin.'  This  again,  led  judges  and  lawyers  to 
insist  on  the  importance  of  possession,  or  seisin,  as  evidence 
and  presumption  of  title,  and  thus  to  give  to  the  seisin  of  land  that 
unique  importance  in  English  land  law  which  it  has  ever  since  held. 
The  next  stage  in  the  story  is  the  development  of  remedies 
for  the  protection  of  seisin  or  possession,  independently  of  a 
Writs  of  Writ  of  Right.  It  soon  became  clear,  that  the 
^^^^  real  essence  of  a  '  novel  disseisin'  was  the  disturbance 

of  good  order  which  had  been  caused  by  the  unsuccessful  party. 
Let  the  idea  be  extended  a  little  further ;  and  we  get  an  inde- 
pendent action  based  on  disturbance  of  seisin  as  a  wrong  jjer  se. 
Thus  appear  the  writs  of  entry,  which,  at  first  only  available 
between  the  ejector  and  the  ejected,  were  gradually  extended 
in  favour  of  persons  deriving  title  through  each  of  them»^  The 
man  who  '  had  no  entry  '  to  the  land  in  dispute,  save  by  a 
disseisin,  was  bidden  to  give  up  the  land  at  once,  or  appear  in 
the  King's  court  to  show  the  reason  why.  If  he  appeared,  the 
simple  question  of  disseisin,  or  disturbance  of  the  King's  peace, 
was  submitted  to  a  jury ;  and,  according  as  the  jury  found, 
so  the  seisin  —  in  theory  only  pending  the  decision  of  the  '  right,* 
in  substance  for  ever  —  was  awarded.  No  wonder  the' feudal 
lords,  who  saw  themselves  deprived  of  their  jurisdiction  by  this 
novel  procedure,  protested  vigorously,  and,   in  form  at  least, 

1  Glanville,  Lib.  Xlll.capp.  32-39. 

*  Ibid.  capp.  18-21. 

'  This  is  the  meaning  of  the  mysterious  per,  post,  and  cid,  so  often  associated  with 
the  Writs  of  Entry.  The  details  are  too  long  to  give.  All  limits  were  removed  by 
the  Statute  of  Marlborough  in  1267  (cap.  29).  The  Writ  of  Entry  thus  became  a 
simple  means  of  recovering  seisin. 


IMPROVED   LEGAL  PROCEDURE         51 

procured  the  abolition  of  the  obnoxious  '  Praecipe '  by  the  Great 
Charter.^  But  the  tide  was  running  against  them.  Under 
cover  of  the  glaring  fiction  that  the  '  lord  of  that  fee  had  renounced 
his  court,'  the  King's  judges  granted,  almost  as  of  course,  on  the 
issue  even  of  a  Writ  of  Right,  a  supplementary  writ  (the  tolt)  to 
remove  the  case  from  the  lord's  court  to  the  shire  court,  and 
another  (the  'pqne)  to  remove  it  from  the  shire  court  to  the  King's 
court."  In  their  despair,  the  feudal  lords  seem  to  have  grasped 
at  royal  privileges,  and,  at  any  rate  during  the  troubled  years  of 
Henry  III,  to  have  attempted  to  attract  litigants  to  their  own 
courts  by  the  offer  of  jury  trial.  But  this  was  too  much  to  be 
borne ;  and  the  claim  was  repudiated,  after  the  royalist  victories, 
by  the  Statute  of  Marlborough.^ 

We  have  seen  that  the  jury  of  accusation,  as  distinct  from 
the  jury  of  trial,  was  introduced  into  the  new  criminal  procedure 
The  ^y  *^^  Assise  of  Clarendon.'*     But  it  is  equally  clear 

Criminal         from  that  document,  that  the  trial  jury  formed  no  part 

Jury  •  ,     .  .  ,    » 

of  its  original  plan.  With  the  abolition  of  ordeals, 
however,  the  machinery  of  the  Assise  threatened  to  break  down. 
Public  opinion,  even  in  the  thirteenth  century,  would  hardly 
permit  of  a  man  of  good  character  being  condemned  off-hand, 
even  on  the  accusation  of  a  jury.  Apparently,  the  judges  who 
found  themselves  called  upon  for  a  practical  solution  of  the 
difficulty  got  into  the  habit  of  asking  the  accused  whether  he 
would  submit  to  a  trial  by  the  'country,'  i.e.  by  a  second  jury, 
chosen  from  the  neighbours  present.  The  purely  voluntary  charac- 
ter of  the  submission  is  shown  by  the  (to  us)  amazing  fact  that, 
until  the  year  1772,^  a  prisoner  who  refused  to  plead  before 
such  a  tribunal  could  not  be  tried  at  all ;  he  could  merely  be 
subjected  to  the  peine  forte  et  dure  —  i.e.  to  judicial  torture,  to 
compel  him  to  plead.^  Apparently,  the  pressure  literally 
applied  to  the  accused  to  'put  himself  upon  his  country'  was 
successful  in  establishing  thepetty  juiy,  or  jury  of  trial  in  criminal 

» Cap.  34. 

-This  process  had  begun  in  Glanville's  day  (Lib.  I,  capp.  4-6).  The  later  forma 
are  given  in  Blackstone's  Commentarus,  Vol.  Ill,  Appx.  I. 

'52  Hen.  Ill  (1267)  c.  22. 

*  Ante,  p.  40-1. 

5*  12  Geo.  Ill,  c.  20. 

®  This  barbaric  means  of  introducing  an  amendment  of  legal  procedure  was 
actually  authorized  by  the  Statute  of  Westminster  the  First  (3  Edw.  (1275)  c.  12). 
That  it  should  have  been  necessary  to  resort  to  it,  is  a  vivid  illustration  of  the 
difficulty  of  openly  making  changes  in  primitive  law. 


52    A   SHORT   HISTORY  OF  ENGLISH  LAW 

cases,  as  an  ordinary  institution,  soon  after  the  close  of  the 
thirteenth  century.  At  any  rate,  a  statute  of  the  year  1352^ 
makes  a  clear  distinction  between  the  jury  of  indictment  ('  grand 
jury  ')  and  the  '  jury  of  deliverance,'  by  enacting  that  no  member 
of  the  former  should  be  put  upon  the  latter,  if  the  accused  ob- 
jected. We  may,  therefore,  not  unfairly  assume,  though  the  story 
is  verj^  dark,^  that,  by  the  middle  of  the  fourteenth  century, 
the  outlines  of  English  criminal  procedure,  as  we  know  it  now, 
had  been  definitely  drawn.^ 

Finally,  in  their  determination  to  win  all  litigation  for  the 
King's  courts,  the  royal  justices,  at  the  very  end  of  this  period,  ( 
invented  or  adopted  a  new  writ,  destined  to  be  of 
enormous    importance    in    all    branches    of    our   law. 
This  was  the  Writ  of  Trespass,  which  makes  its  appearance  in 
the  middle  of  the  thirteenth  century,  just  at  the  outbreak  of 
the  Barons'  War.     Doubtless,  in  those  troubled  times,  offences 
of  violence  w^ere  unusually  frequent ;   whilst  the  old  methods  of 
redress  only  tended  to  aggravate  the  disorder.     The  notion  of 
the  '  peace,'  or  suspension  of  hostilities,  was  very  familiar  in 
theory;    whatever  its  rarity  in  practice.     And,  of  all  'peaces,' 
the  peace  of  the  King  was  the  most  powerful  and  best  protected. 
If^  the  royal  officials  could  once  establish  the  rule,   that  any 
interference  with  possession,  however  slight,  was  a  breach  of 
the  King's  peace,  and  subjected  the  ofl'ender  to  be  summoned 
before  the  King's  justices,  the  ultimate  triumph  of  the  royal 
courts   was   secure.     With   a   little   ingenious   straining,   almost 
any  offence  known  in  a  simple  state  of  society  could  be  treated 
as  a  breach  of  the  peace.     The  notion  of  the  sanctity  of  posses- 
sion had,  as  has  been  seen,  been  growing  by  means  of  the  pro- 
tection afforded    to   *  seisin  '   by  the   '  petty    (or   '  possessory  ') 
assises  '  and  the  Writs  of  Entry.     But  the  notion  of  seisin  was 
becoming    technical.     It    was,    for    special    reasons,    gradually 
being   restricted   to   the   possession   of   land    (as   distinct   from 
chattels),  and  of  land  by  a  freeholder,  or  a  man  who  claimed  as 

1  Printed  as  25  Edw.  Ill,  st.  V,  c.  3. 

^  It  may  Ije  studied  in  the  work  of  the  late  Professor  Thayer,  Evidence  at  the 
Common  Law,  cap.  II. 

*  It  seems  also,  though  the  story  is  not  very  clear,  that  the  decision  of  those 
'exceptions,'  which,  as  wo  have  seen  {ante,  pp.  42,  43),  were  allowed  by  the  royal 
judges  to  evade  an  appeal  of  felony,  was  also  referred  to  a  jury  of  recognitors.  If 
this  were  so,  the  step  by  which  the  issue  of  guilt  or  innocence  was  referred  to  a 
giniilar  body  would  not  be  long  or  distant. 


IMPROVED  LEGAL  PROCEDURE    5^ 

such.  Moreover,  the^notion  of  '  disseisin '  washeld  to  imply 
a  deliberate  attempt  to  assert  a  right  of  possession.  Some- 
thing simpler  was  wanted  —  some  process  which  should  make 
the  mere  casual  raid  or  blow  punishable  by  sharp  and  speedy 
process  in  the  royal  courts. 

This  is  exactly  what  the  Writ  of  Trepass  did,  as  the  following 
form   wiir^show. 

"  If  A  gives  pledges  to  prosecute  his  complaint,  then  put 
B  by  gage  and  pledge  that  he  (B)  be  before  our  Justices 
at  Westminster  (on  such  a  day)  prepared  to  show  why  with 
force  and  arms  he  assaulted  the  said  A  at  N  (or  broke  the 
close  of  A  at  N,  or  took  and  carried  away  the  sheep  of  A) 
and  other  enormities  to  him  did,  to  the  grave  damage  of  the 
said  A,  and  against  our  peace."  ^ 

In  somewhat  later  days,  there  appears  to  have  been  a  second 
form,  in  which  the  sheriff  was  bid  to  hear  the  plaint ;  and  the 
allegations  of  '  force  and  arms '  and  '  against  our  peace '  were 
omitted.  But  it  may  be  doubted  whether  the  '  viscontiel ' 
Writ  of  Trespass  was  known  in  the  period  under  review.^  At 
any  rate,  the  great  merit  of  the  Writ  of  Trespass  was,  that  it 
offered  to  the  injured  party  a  tempting  alternative  of  the  some- 
what unsatisfactory  remedies  previously  open  to  him.  Instead 
of  bringing  a  dangerous  '  appeal,'  in  which  his  opponent  might 
complete  his  triumph  by  doing  the  complainant  to  death,  in- 
stead of  resorting  to  a  probably  unavailing  summons  before 
the  Hundred  moot,  the  complainant  could  bring  his  adversary 
before  the  royal  justices  and  get  him  fined  and  outlawed,  while, 
out  of  the  offender's  goods,  compensation  would  be  awarded 
to  the  complainant  in  proportion  to  the  extent  of  his  loss.  Almost 
from  the  first,  it  would  seem,  the  very  simple  question  involved 
in  an  action  of  Trespass  ('  Did  or  did  not  the  defendant  offer 
violence  to  the  plaintiff  ?  ')  was  referred  to  that  new  '  inquest' 
tribunal  which,  as  we  have  seen,  was  becoming  the  favourite 
method  of  settling  all  short  questions  of  fact.  At  any  rate, 
we  know  that,  when  Edward  I,  in  1284,  was  forcing  English 

'  Fitzherbert,  Natura  Brevium,  I,  86.  Of  course  Fitzherbert  lived  long  after 
the  thirteenth  century ;  but  the  form  may  be  traced  back  to  1254  (Abbreviatio 
Placitorum, 141,  &c.). 

^  This  doubt  is  suggested  by  the  curious  name  which,  in  later  days,  distinguished 
the  royal  from  the  local  Writ  of  Trespass.  The  former  was  said  to  be  'returnable.' 
But  are  not  all  writs  of  summons  'returnable'? 


54    A   SHORT  HISTORY   OF  ENGLISH  LAW 

legal  procedure  on  the  conquered  Welsh,  he  spoke  of  trial  by 
the  patria  (the  technical  name  for  a  jury)  as  the  almost  inevitable 
method  of  deciding  a  plea  of  Trespass ;  ^  and  he  announced  his 
intention  of  standing  no  nonsense  about  refusal  of  consent.^ 
The  new  Writ  of  Trespass  would,  therefore,  present  the  double 
merit  of  a  speedy  decision  and  a  new  remedy.  It  is  true  that 
the  complainant  ran  some  risk.  If  his  complaint  turned  out 
to  be  unfounded,  he  was  in  misericordid  regis  —  i.e.  liable  to 
fine  and  imprisonment.  But  this  was,  after  all,  a  smaller  risk 
than  the  risk  of  an  '  appeal.' 

By  these  and  other  means,  of  which  no  account  can  here 
be  attempted,  the  royal  officials  of  the  twelfth  and  thirteenth 
centuries  had  accomplished  the  chief  part  of  that  heavy  task 
which  lay  before  the  State,  if  it  was  to  justify  its  existence  by 
establishing  order  and  justice  in  the  land.  They  had  not  only 
provided  a  machinery  which  would,  in  the  not  very  distant 
future,  draw  well-nigh  all  causes  to  the  King's  courts,  and  thus 
prepare  the  way  for  one  uniform  system  of  law;  they  had,  in 
the  process,  almost  of  necessity  brought  into  existence  a  whole 
set  of  tribunals  to  deal  with  such  causes.  The  steps  by  which 
the  old  irregular  progresses  of  the  King  and  his  oificers  through- 
out the  land  had  developed  into  an  elaborate  system  of  circuit 
courts  for  the  trial  of  assises  and  gaol-deliveries  and  offences 
against  the  peace,  are  matters  of  Constitutional  Law,  and 
cannot  here  be  traced ;  so  with  the  process  by  which  the  old 
Curia  Regis,  sitting  occasionally  to  settle  disputes  between 
tenants  in  capite,  had  produced  the  regular  tribunals  of  the 
Upper  Bench,  Common  Bench,  and  Exchequer  of  Pleas.  These 
Aveighty  matters  are  for  separate  study.^  Here  it  has  been 
attempted  only  to  show,  how  the  royal  justices,  faced  with 
the  duty  of  strengthening  the  authority  and  revenue  of  their 
master,  had,  by  silent  innovation  and  subtle  ingenuity,  gone 
far  to  bring  about  the  day  when  that  master  should  be  '  over 
all  causes  and  in  all  matters  within  his  dominions  supreme.' 
This  was  a  great  ideal ;  for  it  meant,  ultimately,  one  people 
under  one  law. 

•  Statutum  Walliae,  cap.  11.  '  Ihid. 

'  They  may  be  studied  briefly  in  the  late  Professor  Maitland's  posthumously 
published  Conslitutiondl  History,  and  in  Book  I,  ehaptor  VII,  of  the  great  History 
of  Pollock  and  Maitland ;  at  more  length  in  volume  I  of  Holdsworth's  History  of 
English  Law. 


CHAPTER  V 

THE  LAW  OF  CHATTELS 

IT  is  not  due  to  carelessness  that,  in  the  arrangement  of  the 
chapters  deahng  with  this  period,  the  subject  of  legal 
,  -  procedure  is  placed  between  what  a  modern  lawyer  would 
regard  as  two  equally  important  branches  of  substantive  law. 
This  is  a  work  on  history ;  and  such  a  work  should  follow  his- 
torical lines,  which  in  the  present  connexion  appear  to  fall  in 
the  direction  indicated.  The  feudal  scheme  of  land  law  was 
deliberately  built  up  with  a  view  of  administering  the  newly 
won  country  of  England.  The  new  procedure,  which  the  last 
chapter  has  attempted  to  describe,  was  very  largely  produced 
by  the  desire  to  strengthen  the  feudal  scheme  of  land  law. 
The  common  law  of  chattels,  that  is  to  say,  the  law  ultimately 
adopted  by  the  King's  courts  for  the  regulation  of  disputes  about 
the  ownership  and  possession  of  goods,  was,  to  a  substantial 
extent,  a  by-product  of  that  new  procedure  which  had  been 
mainly  introduced  to  perfect  the  feudal  scheme  of  land  law. 

We  have  seen  ^  that  the  foundation  stone  of  the  new  royal 
procedure  for  the  decision  of  land  suits  was  the  Writ  of  Right. 

Doubtless,  as  has  also  appeared,  this  primordial 
Right  and°  but  rather  costly  and  dilatory  remedy  had,  in  prac- 
DebT^"*  °'     tice,  been  largely  superseded  by  newer  and  more  speedy 

remedies,  which,  originally  intended  to  decide  only  'in- 
terlocutory '  questions,  had  come  to  be  regarded  as  disposing  of 
final  questions.  Nevertheless,  it  remained  an  assumption,  all 
through  the  Middle  Ages,  that  the  claimant  of  land  who  was 
really  in  earnest,  could  insist  on  the  original  remedy  of  a  Writ  of. 
%ht.2 

'  Ante,  p.  49. 

*  Even  the  theoretical  right  to  trial  by  battle  was  not  abolished  till  1819  (59  Geo. 
Ill,  c.  46,  s.  2  —  the  statute  which  also  abolished  appeals).  The  Writs  of  Right 
themselves  (for  there  were  several  varieties)  were  not  formally  abolished  till  1833 
(3  and  4  WiU.  IV,  c.  27,  s.  36). 


56    A   SHORT  HISTORY  OF  ENGLISH  LAW 

Now  in  that  treatise  attributed  to  Glanville,  which  tells  us 
most  of  what  we  know  about  the  procedure  of  the  royal  courts 
in  the  twelfth  century,  there  is  another  writ,  the  Writ  of  Debt, 
which  strikingly  resembles  it,  and,  indeed,  appears  to  overlap 
it  in  certain  cases.     Let  us  put  the  two  writs  side  by  side. 

Right  Debt 

'  The  King  to  the  Sheriff.     Bid  A  '  The  King  to  the  Sheriff.     Bid  N 

that    to  justly  and  without    delay  that    he  justly  and  without    delay 

render  to  B  one  hide  of  land  in  such  render  to  R   100  marks  which    he 

a  vill,  of  which  the  said  B  complains  owes  him,  as  he  (R)  saith,  and   of 

that  the  said  A  unjustly  deforeeth  which  he  (R)  complains  that  he  (N) 

him.     And  unless  he  does  it,  sum-  unjustly  deforeeth  him.     And,  un- 

monhim,'  &c.  (Glanv.  lib.  I,  cap.  5).  less  he  does  it,  summon  him,'   &c. 

(Glanv.  lib.  X,  cap.  2). 

This  resemblance,  already,  as  we  have  said,  striking  enough, 
becomes  all  the  more  striking  when  we  observe  that  there  was 
actually  a  form  of  the  Writ  of  Debt  applicable  to  the  recovery 
of  land.  This  form  ^  supposes  that  the  land  was  given  in  pledge 
by  the  plaintiff  to  the  defendant,  for  a  term  of  years  which  has 
expired,  and  that  the  defendant  refuses  to  give  back  the  land. 
This  is  a  most  interesting  writ  from  other  points  of  view  also. 
Something  will  have  to  be  said  of  it  when  we  speak  of  terms  of 
years,  and  also  when  we  speak  of  mortgages.  At  present  we 
confine  ourselves  to  asking  why,  contrary  to  all  experience  of 
early  legal  systems,  there  should  apparently  be  a  double  remedy 
for  the  same  grievance? 

But,  if  we  look  a  little  more  closely,  we  shall  probably  soon 
discover  that  the  grievance  is  not  exactly  the  same  in  the  two 
Not  Based  cases.  In  the  case  of  the  Writ  of  Ri^ht,  as  in  the 
on  Violence  ^.^gg  gf  the  popular  'appeal  of  larceny,'  there  is  an 
underlying  assumption,  that  the  thing  sought  to  be  recovered 
has  been  taken  from  the  claimant  by  force  or  fraud.  Therefore, 
if  all  other  methods  fail,  the  dispute  must  be  decided  by  battle. 
In  the  case  of  the  Writ  of  Debt,  it  is  not  so ;  though  it  is  possible 
that,  incidentally,  a  question  involving  an  appeal  to  arms  may 
arise  in  the  course  of  an  action  of  Debt  —  as,  for  example,  if  the 
defendant  from  whom  a  chattel  is  claimed  sets  up  a  hostile  title, 
and  '  vouches  to  warranty  '  a  third  party  who  takes  up  the 
challenge.^     In  the  ordinary  way,  the  Writ  of    Debt  assumes 

1  Glanville,  lib.  X,  cap.  9.  ^  Ibid.,  cap.  17. 


THE   LAW  OF  CHATTELS  57 

that  the  thing  sought  to  _^  be  recovered  has  been  voluntarily 
handed  over  (or  'bailed')  to  the  defendant  by  the  plaintiff, 
for  a  specific  purpose,  such  as  hiring,  pledge,  or  loan,  which 
has  now  expired.  According  to  the  ideas  of  the  day,  refusal 
to  return  a  thing  thus  '  bailed  '  was  no  very  serious  offence ; 
probably,  in  spite  of  King  Alfred's  injunctions,  the  plaintiff 
in  such  a  case  was  looked  upon  as  rather  a  fool  for  letting  his 
land  or  chattels  go  out  of  his  hands.  So  the  stern  remedy  of 
battle  was  iiQt  part  of  the  proceedings.  The  defendant  (even, 
apparently,  if  the  plaintiff  has  a  tally  or  other  record  of  the 
transaction)  was  allowed  to  clear  himself  by  the  process  of 
*  waging  his  law.' 

Now,  at  this  point,  the  student  of  English  legal  history  ought 
to  begin  to  feel  a  serious  difficulty.  He  has  been  taught  to 
A '  Real  believe,  on  the  great  authority  of  Bracton,^  that 
Action  there  never  was,  in  English  law,  an  action  to  recover 

a  specific  chattel,  a  'real'  action  to  recover  a  movable;  and 
he  knows  that,  until  a  very  recent  day,  the  defendant  in  an 
action  of  Detinue  (which  was  only  a  special  form  of  Debt) 
could  always  evade  delivery  of  the  subject  matter  by  paying 
its  value.  And  yet  it  looks,  if  Glanville  speaks  the  truth,  as 
though  the  earliest  and,  for  some  time,  the  only  chattel  action 
known  to  the  King's  courts,  was  of  the  most  thoroughly  'real' 

type. 

The  difficulty  is  great ;  but  a  fairly  plausible  solution  may 
be  offered. 

It  seems  quite  clear,  that  the  original  notion  of  the  Writ  of 
Debt  was  as  'real'  as  anything  could  possibly  be.  Even 
when  the  subject  of  the  action  was  a  sum  of  money,  as  in  the 
first  example  given  by  Glanville,^  the  mind  of  the  framer  of 
the  writ  is  evidently  bent  on  getting  back  the  specific  coins 
lent.  There  is  no  question  of  a  '  debt '  in  the  wide  modern 
sense,  which  includes  any  liability  to  pay  money.  The  de- 
fendant is  to  restore  the  very  coins  lent. 

But,  even  in  the  twelfth  century,  though,  doubtless,  the 
'FungibiUty*  quality  of  coins  was  very  far  from  uniform,  a  plaintiff 
of  Money  would  have  been  unwise  if  he  refused  to  accept 
100  marks  from  a  defendant,  on  the  ground  that  they  were 

>  Lib.  Ill,  cap.  3  (4).  »  Lib.  X,  cap.  2. 


58     A  SHORT  HISTORY  OF  ENGLISH  LAW 

not  his  identical  coins.  Naturally,  the  defendant  had  not 
borrowed  the  money  for  the  purpose  of  looking  at  it ;  he  had 
borrowed  it  to  trade  with,  or  to  pay  his  rent,  or  for  some  other 
purpose  which  involved  parting  with  it.  What  is  technically 
called  the  '  fungibility  '  of  money,  is  its  chief  value  as  an  article 
of  commerce ;  and  this  fact  could  not  long  remain  unrecognized, 
even  by  such  a  conservative  class  as  legal  officials.  Accord- 
ingly, it  soon  became  clear,  that  an  action  of  Debt  based  on  a 
loan  of  money  was  merely  an  action  to  recover  money  of  a  cer- 
tain value.  But  the  originally  '  real '  character,  even  of  a  money 
claim,  survived,  to  the  latest  days  of  its  history,  in  the  rule  that 
a  Writ  of  Debt  could  only  be  issued  for  a  specific  sum  —  the 

*  very  debt  itself  '  was  to  be  recovered.  The  action  could  not 
be  employed  to  recover  '  unliquidated  damages  ' ;  because 
there  was  no  jury  to  assess  them.  If  the  defendant  was  so 
unlucky  as  to  fail  in  his  wager  of  law,  he  was  liable  for  the  whole 
of  the  plaintiff's  claim.^ 

The  change  was  by  no  means  complete  when  the  thing  sought 
to  be  recovered  was,  not  money,  but  'non-fungible'  chattels. 
Other  The  difference   is   marked   by   the   appearance,   just 

Chattels        ^t  the  end  of  this  period,  of  the  distinction  between 

*  Debt '  and  '  Detinue.'  If  the  plaintiff  is  suing  for  a  sum  of 
current  money,  he  alleges  that  the  defendant  'debet' — i.e. 
ought  to  pay  it ;  and  the  Court,  if  the  defence  fails,  will  issue 
a  judicial  writ  {Fi.  Fa.)  to  the  sheriff,  bidding  him  'cause  the 
sum  to  be  made'  from  the  defendant's  goods.  But  if  the 
plaintiff  is  seeking  the  recovery,  say,  of  a  horse  or  a  plough,  he 
must  say  that  the  defendant  'detains'  it  {detinei) ;  and  then 
he  may  be  met  by  the  simple  denial,  strictly  in  accordance 
with  ancient  tradition-  —  non  detinet.  But  that  simple  denial 
opened  up  all  sorts  of  questions,  on  some  of  which  the  law  of 
the  thirteenth  century  was  very  vague.  It  may  be  quite  true 
that  the  defendant  no  longer  '  detinet ' ;  because  he  has  sold 
the  article  and  pocketed  the  money.  And  yet,  surely,  he  ought 
not  to  get  off.  On  the  other  hand,  the  horse  may  have  died  or 
been  killed  without  his  (the  defendant's)  fault ;  and  then  the 
case  would  be  different. 

'  Professor  Maitland  has  pointed  out  that  this  result  was  actually  onihalniod  in 
a  verse  of  medieval  doggerel  {The  Court  Baron,  S.S.  vol.  4,  p.  17). 

'  This  was  the  'twertutnay'  or  direct  denial  (word  for  word)  which  the  primitive 
moot  expected  from  an  accused. 


THE  LAW  OF   CHATTELS  59 

Accordingly,  as  Bracton  informs  us/  it  was  the  business  of 
every  plaintiff  who  sought  to  recover  a  chattel  by  action,  to  put 
Alternative  a  price  upon  it;  and  then,  even  if  the  defendant 
Remedy  ^q  longer  held  the  chattel,  he  might  be  made  liable 
for  the  value.  And  thus  the  Court,  unwilling  to  allow  the 
plaintiff  to  be  tricked  at  the  last  moment  by  the  defendant 
destroying  the  chattel  or  allowing  it  to  escape,  seems  to  have 
got  into  the  habit  of  giving  judgment  for  the  return  of  the 
article  or  its  value,  an  alternative  not  unnaturally  interpreted 
by  defendants  in  their  own  favour. 

A  much  more  interesting  explanation  of  this  apparently 
stupid  anomaly  is  so  often  given,  that  a  word  must  be  said 
Another  about  it.  It  is  alleged  that  the  maxim  or  rule  enun- 
Expianation  elated  by  Bracton  is  founded  on  a  fundamental 
principle  of  Teutonic  law,  usually  expressed  in  the  adage  *  Haiid 
muss  Hand  wahren,'  or,  in  French  form,  *  meuhle  n'a  suyte.' 
With  great  respect,  the  adage  alluded  to  seems,  in  practice  at 
any  rate,  to  have  led  to  a  result  exactly  the  opposite  of  the  rule 
under  consideration.  Surely  we  see  the  primitive  Teutonic 
mind  at  work,  if  anywhere  in  legal  procedure,  in  that  ancient 
'appeal  of  larceny'  which  the  King's  courts  are,  in  this  period, 
trying  to  put  down.  But  it  is  just  in  the  appeal  of  larceny 
that  the  successful  appellor  gets  back  his  very  goods.  The 
possessor  may  clear  himself  by  '  vouching  to  warranty,'  or 
by  showing  that  he  bought  the  goods  before  formal  witnesses ; 
but  he  has  to  give  them  up  all  the  same,  if  the  plaintiff  can 
prove  his  allegations.  If  the  appellee  is  worsted  in  battle,  he 
loses,  not  merely  the  article  in  dispute,  but  his  other  chattels  as 
well.  In  the  picturesque  language  of  an  ancient  Assise  Roll, 
*  he  (the  appellor)  gets  his  (the  appellee's)  chattels,  for  beheading 
him.'^  It  is  suggested  that  this  primitive  right  could  not  be 
enforced  if  the  claimant  had  voluntarily  parted  with  the  posses- 
sion of  the  chattel  sought  to  be  recovered.^  It  may  be  so; 
though  the  reasoning  is  not  obvious.  It  looks  much  more  as 
though,  when  money  became  common,  and  most  things  had 
acquired  a  '  market  value,'  and  when  the  new  jury  tribunal  was 

'Lib.  Ill,  cap.  3  (4)  'alioquin  non  valebit  rei  mobilis  vindicatio,  pretio  non 
apposite.'  As  Bracton  goes  on  to  point  out,  the  necessity  for  valuation  is  still 
greater  where  the  object  'in  pondere,  numero,  mensura,  consistit.' 

^Assise  Rolls  of  Northumberland     (Surtees  Society),  p.  70. 

'  See  the  question  elaborately  discussed  by  P.  &  M.  (Vol.  II,  pp.  155-183). 


60    A   SHORT  HISTORY  OF   ENGLISH  LAW 

there  to  assess  'unliquidated  damages,'^  it  was  found  convenient 
to  substitute  a  money  judgment  for  a  decree  of  specific  restora- 
tion. But  it  was  a  singular  and  obvious  gap  in  the  legal  pro- 
cedure of  the  Middle  Ages;  and  it  worked  a  good  deal  of  in- 
justice. 
f  So  far  we  have  learned,  incidentally,  that,  according  to  English 
law  in  the  thirteenth  century,  chattels  might  be  stolen,  aliened 
Law  of  (finally    or    temporarily),    and     recovered    by    legal 

Succession  ppoccss.  But  it  is  also  clear,  though  the  rules  them- 
selves are  far  from  certain,  that  chattels  may  be  disposed  of  by 
will,  and  that,  if  they  are  not  so  disposed  of,  they  can  be  claimed 
under  rules  of  intestate  succession. 

The  latter  is  obviously  the  older  method ;  and  it  is  some- 
what surprising  to  discover  how  long  its  first  principles  remained 
unsettled.  The  Laws  of  Cnut  give  the  undisposed 
of  possessions  {cpJtfe)  of  a  deceased  person  to  his  wife 
and  children;  subject  only  to  the  just  claims  of  his  lord.-  The 
coronation  charter  of  Henry  I  allots  them  to  his  wife,  children, 
or  relatives,  and  his  liege  men ;  to  be  divided  for  the  good  of  his 
(the  deceased's)  soul.^  The  Custumal  known  as  the  Leges 
WiUehii  says  that  the  goods  of  a  deceased  Intestate  are  to  be 
divided  equally  among  his  children.^  Glanville  gives  them  to 
his  lord.^  The  Great^harter  supports  the  claims  of  the  Qiurch  I 
to  undertake  the  distribution  ;^  and  Bracton  follows  the  Charter.^ 

Thus  the  victory  appeared  to  rest  with  the  Church ;  but 
it  is  clear  from  Bracton's  pages,  that  the  Church  was  not  allowed 
The  Reason-  to  carry  off  all  the  goods  of  a  deceased  intestate, 
able  Parts  From  whatever  source  derived,  whether  from  Roman 
Law  or  Teutonic  custom,  there  was  an  ancient  division  which, 
differing  in  detail  from  place  to  place,"is  everywhere  recognizable 
in  principle.  The  deceased's  widow  (unless  sufficiently  pro- 
vided for  by  dower)  gets  one  third  of  jthe_goods;    one  half  if 

1  In  this  connection,  the  new  Writ  of  Trespass  (de  bonis  asportatis)  previously 
alluded  to,  was  important ;  but  it  did  not  apply  to  chattels  voluntarily  bailed  to  the 
defendant. 

2  Cnut,  II,  70. 

3  S.C.  101. 

*  Liebermann,  514. 

'  Lib.  VII,  cap.  16.  (Possibly  this  passage  refers  only  to  the  case  of  the  bastard, 
which  Glanville  has  just  been  discussing.  But  the  forty  manorial  courts  which 
claimed  probate  jurisdiction  so  late  as  the  year  1831  (Report  on  Ecclesiastical  Courts, 
Appx.  D,  p.  509)  suggest  a  formerly  widespread  claim.) 

6 Cap.  27  (S.C.  300).  '  Lib.  II,  cap.  26  (2). 


THE  LAW  OF   CHATTELS  61 

there  are  no  children.  The  children  get  a  third,  or,  if  there  is.no 
widow,  a  half.  The  remaining  third  (or  half)  is  the  '  deads' 
part ' ;  and,  if  not  disposed  of  by  the  deceased's  will,  goes  to  the 
Church,  or,  possibly,  if  the  deceased  man  was  a  serf,  to  his  lord.^ 

This  brings  us  to  an  important  question.  Is  the  will  (of 
chattels)  a  primitive  English  institution?  The  passage  above 
The  Testa-  quoted  from  the  Laws  of  Cnut  refers  to  a  man  who 
ment  ^^j^g  <  civydeleas  ' ;    it  suggests,  therefore,  that  a  man 

might  if  he  liked,  make  a  will.  But  it  seems  to  be  the  better 
opinioi\^tli^t,  before  tlie  twelfth  ceuliiry,  the  only  form  of  testa- 
mentary disposition  in  England  (except  in  the  case  of  privileged 
persons)  was  the  '  post-obit  gift,'  i.e.  the  actual  delivery  of  goods 
to  a  trustee  or  executor,  who  undertook  to  distribute  them  after 
the  owner's  death  in  accordance  with  the  latter's  wishes. 

Now  the  Church  disliked  this  way  of  doing  business ;  because 
it  left  little  scope  for  that  practice  of  making  death  bed  gifts 
Influence  of  wliich,  during  the  whole  of  the  Middle  Ages,  brought 
the  Church  g^  m^ch  wealth  to  ecclesiastical  coffers.  And  so  we 
find,  everywhere  throughout  Western  Europe,^  as  one  of  the 
most  striking  results  of  the  establishment  of  separate  ecclesiastical 
courts,  the  introduction  of  the  genuine  will  of  chattels,  i.e.  the 
purely  '  ambulatory '  disposal,  usually  by  mere  word  of  mouth, 
of  the  'dead's  part,'  to  take  effect  on  his  decease.  Such  wills, 
being  revocable  and  secret,  were  usually  made  in  articulo  mortis, 
and  were  really  part  of  the  dying  confession.  Naturally,  the 
execution  of  these  fell  into  the  hands  of  the  Church,  which,  also, 
usually  turned  out  to  be  chiei  legatee.  Naturally,  also,  the 
Church  insisted  strenuously  upon  the  duty  of  making  a  will, 
and  almost  stigmatized  as  doomed  to  perdition  the  unlucky  man 
who  omitted  this  duty  —  at  least  if  he  had  fair  warning  of  his 
impending  death.  Naturally,  in  the  last  place,  the  Church 
contended  strongly,  that  such  a  lapse  from  duty  should  not 
deprive  her  of  property  which  should  have  been  left  for  pious 
uses;  and,  as  has  been  seen,  she  seems  to  have  made  good  her 
claim  by  the  end  of  the  period  under  review. 

Thus  the  Church  in  England  acquired  that  unrivalled  posi- 
tion in  the  matter  of  wills  of   chattels  which  remained  almost 

>  See  Bracton,  lib.  II,  cap.  26  (2),  ff.  60  b-61  a. 

'  See  Caillemer,  The  Executor  in  England  and  on  the  Continent  (Select  Essays 
in  Anglo-American  Legal  History,  III,  746-769). 


62    A  SHORT  HISTORY  OF   ENGLISH   LAW 

unbroken  for  six  centuries.  If  the  deceased's  legatees  set  up  a 
will,  they  must  prove  its  existence  in  the  court  of  the 
tary  jurisdic-  '  Ordinary  of  the  diocese ;  otherwise  the  Church's 
claim  to  the  'dead's  part'  prevailed.  Thus  the  'pro- 
bate' of  the  will.  All  questions  of  interpretation  were  naturally 
referred  also  to  the  same  tribunal.  If  intestacy  were  admitted, 
the  Church  appointed  an  '  administrator  ' ;  and  it  was  long  before 
the  next-of-kin  could  make  him  answerable  for  the  '  dead's  part.' 
Until  tjie  '  letters  of  administration '  were  formally  granted, 
the  goods  were  the  property  of  the  '  Ordinary.'  No  doubt 
there  were,  in  privileged  places,  e.g.  chartered  towns,  special 
customs  which  ousted  the  control  of  the  Church  courts.^  But, 
speaking  generally,  the  Church  had,  by  the  end  of  the  thirteenth 
century,  established  a  monopoly  of  testamentary  jurisdiction 
in  all  matters  not  affecting  land.  The  efforts  of  the  royal 
courts  seem  to  have  been  confined  to  a  vigorous  defence  of  all 
land  jurisdiction  against  the  Church,  and  to  the  enforcement, 
in  favour  of  the  creditors  of  the  deceased,  of  the  payment  of 
the  latter's  debts.  This  last  point  is  so  important,  that  a 
few  words  must  be  said  about  it. 

Once  more,  the  student  familiar  only  with  modern  ideas 
finds  himself  in  a  maze  when  he  attempts  to  understand  the 
^jjg  attitude  of  primitive  society  towards  the  liabilities 

Deceased's  of  a  deceased  person.  To  him  it  appears  inevitable, 
that  the  claims  of  a  dead  man's  creditors  should  be 
confined  to  his  '  estate,'  i.e.  the  proprety  which  the  dead  man 
leaves  behind  him.  Every  student  of  English  law  is  also  familiar 
with  the  fact  that,  until  less  than  a  century  ago,  it  was  with 
difficulty,  and  only  in  exceptional  cases,  that  the  deceased's 
land  could  be  made  available  to  satisfy  his  creditors.  It  may, 
therefore,  come  upon  him  as  a  shock  to  find,  that  there  are, 
in  English  law  of  the  twelfth  century,  unmistakable  traces  of 
personal  and  unlimited  liability  on  the  part  of  the  heir  to  satisfy 
his  ancestor's  debts,  irrespective  of  'assets.'  Glanvillc,-  for 
example,  distinctly  says  that,  if  the  goods  of  the  deceased  are 
insufficient  to  pay  his  debts,  the  heir  '  is  held  bound  to  make 
up  the  deficiency  out  of  his  own  estate,  if  he  is  of  age.'  As 
late  as  the  year  1275,  the  Statute  of  Westminster  the  First  ^ 

•  See  Gross,  Mediaeval  Intestacy  (Select  Essays  in  Anglo-American  Legal  History, 
III,  723-736).  « Lib.  VII,  cap.  8.  '  3  Edw.  I,  c.  19. 


THE  LAW  OF   CHATTELS  63 

re-afl5rmed  this  rule ;  so  far  as  Crown  debts  were  con- 
cerned. 

The  explanation  seems  to  lie  in  the  fact  that,  in  early  times, 
the  liabilities  of  a  deceased  person  are  not  '  debts  '  in  the  modern 
Primitive  Sense  of  the  term,  but,  rather,  sacred  family  responsi- 
Notions  bilities  connected  with  religion  and  the  blood  feud, 

which  are  indelible,  and  fall  alike  on  all  members  of  the  kin. 
It  was  only  the  recent  and  extraordinary  change  in  the  law 
which,  as  we  have  seen,  substituted  primogeniture  for  equal 
division  among  males,  that,  in  England,  made  the  liability  of 
the  single  heir  look  so  grotesque.  And  so  we  are  not  surprised 
to  find  that  a  great  change  took  place  also  in  the  law  of  liability 
for  the  dead  man's  debts. 

The  change  is  marked  by  the  introduction  of  a  new  figure 
into  the  scene.  In  the  middle  of  the  twelfth  century,  the  heir 
The  is    contemplated    as    the    person    who    will    succeed. 

Executor  j^^^  ^j^jy  ^^  ^j-^g  deceased's  land,  but  to  his  chattels, 
at  any  rate  for  purposes  of  distribution.  'If,'  says  the  Assise 
of  Northampton,^  '  a  free  tenant  dies,  his  heir  shall  continue  in 
the  seisin  ^  which  his  father  had  on  the  day  when  he  (the  father) 
was  alive  and  dead,  as  regards  his  fief;  and  he  (the  heir)  shall 
have  the  chattels  that  he  may  make  the  division  of  the  deceased.' 

But  it  was  natural  that  the  new  practice  of  will-making 
introduced  by  the  Church  should  work  a  change  in  this  rule ; 
and,  accordingly,  we  find  that,  by  the  early  years  of  the  thir- 
teentL- century,  the  person  entrusted  with  the  distribution 
of  the  chattels  of  the  deceased  is  not  his  heir,  but  a  new  person 
called  an  '  executorj^',  i.e.  a  person  specially  appointed  by  the 
deceased  to  execute,  or  carry  into  effect,  his  will.^  This  person 
may  be,  as  is  sometimes  suggested,  a  survival  of  the  old  Treu- 
hander  or  Salmann,  to  whom  was  entrusted,  by  post-obit  gift, 
the  fulfilment  of  the  deceased's  wishes  in  primitive  times.'* 
But  he  is  sufficiently  accounted  for  by  the  desire  of  the  Church 
courts,  jealously  excluded  from  all  control  over  the  deceased's 
land,  but  vested,  as  we  have  seen,  with  administration  of  his 
chattels,  to  have  a  separate  '  personal  representative,'  who  should 

'Art.  4  (S.C.  151). 

*  This  is  the  famous  doctrine :    '  Le  mort  saisit  le  vif.' 

'  '  The  rest  (of  the  deceased's  chattels)  shall  be  left  to  his  executors  for  the  per- 
formance of  his  will'  (Magna  Carta  of  1215,  cap.  26,  S.C.  300). 

*  Ante,  p.  61. 


64    A  SHORT  HISTORY  OF   ENGLISH   LAW 

derive  his  authority  entirely  from  them,  and  undertake  to  carry 
out  the  administration  under  their  supervision,  and  according 
to  their  rules.  In  the  case  of  intestacy,  it  was  still  more  im- 
portant for  the  Church  courts  to  appoint  an  '  administrator,' 
who  would  look  sharply  after  the  substantial  claims  of  the 
Church  in  respect  of  the  undisposed  of  '  dead's  part.' 

But  it  was  equally  natural  that  the  heir,  thus  deprived  of 
what  was  gradually  growing,  as  commerce  and  industry  devel- 
Reiease  of  oped,  to  be  a  more  and  more  important  part  of 
the  Heir  j^jg  ancestor's  estate,  should  decline  responsibility 
for  his  ancestor's  liabilities ;  the  more  so  as  these  also  gradually 
ceased  to  wear  a  religious  and  personal  character,  and  became 
mere  commercial  debts.  The  liability  of  the  deceased's  chattels 
themselves  to  be  employed  for  payment  of  his  debts  is  clear; 
even  in  the  passage  of  Glanville  which  has  been  quoted  to 
show  the  ultimate  liability  of  the  heir  at  that  date.^  By  the 
time  of  Bracton,^  we  find  that  the  heir's  liability  is  limited  to 
the  value  of  the  deceased's  property  inherited  by  him.  The 
great  Statute  of  Westminster  the  Second,  in  1285,  informs  us, 
incidentally,  that  the  executors  of  a  deceased  person  are  bound 
to  pay  his  debts,^  and  imposes  a  similar  liability  on  the  '  Ordi- 
nary '  in  the  case  of  intestacy.  The  same  statute  ^  gives  to 
executors  a  Wxit^of  Account  against  the  debtors  of  the  deceased ; 
and  thus  relieves  them  from  the  necessity  of  resorting  to  the 
Church  courts  for  less  efficient  remedies.  For  the  King's  courts 
did  not  allow  the  Church  courts  to  entertain  actions  of  Debt, 
even  fide  interpositdJ' 

In  some  such  way  as  this  appear  to  have  arisen  those  two 
fundamental  rules  of  the  Common  Law  which  were,  until  recently, 
and,  to  a  considerable  extent,  are  still,  such  striking  features 
of  the  English  Law  of  Succession.  Land^  goes  to^th£_heir; 
because  the  executor  was  appointed  by  a  will,  and  the  King's 
courts  would  recognize  no  will  of  lands.     And  it  wenf,^until 

^  Perhaps,  however,  at  that  date  only  when  the  testator  had  so  expressly  directed 
(Lib.  VII,  cap.  8). 

'  Lib.  II,  cap.  26  (2).  'But  the  heir  of  the  deceased  will  be  bound  to  pay  the 
debts  of  the  deceased  ...  so  far  as  the  inheritance  goes,  and  no  farther'  (fo.  61a). 

3  13  Edw.  I,  St.  I,  c.  19. 

*  Cap.  23. 

'  Glanville,  lib.  X,  cap.  12. 

'  It  must,  of  course,  be  remembered  that,  for  this  purpose,  'land'  does  not 
include  terms  of  years  ('leaseholds'). 


THE   LAW  OF  CHATTELS  65 

lately,  to  the  heir  free  of  all  the  liabilities  of  the  deceased  ;  except 
such  as  could  be  enforced,  under  the  law  of  warranty,  against 
the  land  itself  ('specialities  in  which  the  heir  is  bound  ')•  If  the 
Church  claimed  the  chattels,  let  her  pay  the  debts.  This 
medieval  quarrel  is  largely  responsible  for  one  of  the  most 
characteristic  and  important  rules  of  English  property  law,  viz. 
the  distinction  between  '  real '  and  '  personal '  property. 

At  first  sight  it  looks  as  though  the  period  before  us  did  nothing 

to  develop  that  branch  of  the  law  which,  to  every  modern  lawyer, 

is  of  supreme  importance,  viz.  the  Law  of  Contract. 

Contract  ^  \  .         .      ,  ,         i  .    ,         > 

roT  the  modern  lawyer  mevitably  thmks  or  a  con- 
tract as  an  accepted  offer,  or  agreement;  and  Glanville  lays  it 
down  emphatically,  in  spite  of  the  somewhat  ambiguous  wording 
of  the  Constitutions  of  Clarendon^  (with  which  he  must  have 
been  familiar),  that  the  King's  court  will  not  concern  itself  with 
*  private  agreements.'  ^  Bracton,  who  wrote  at  the  very  end  of 
our  period,  was,  as  a  scholar  and  a  student  of  Roman  Law, 
perfectly  well  aware  of  the  hideous  gap  left  in  the  structure  of 
the  common  law  by  the  absence  of  a  general  theory  of  contract ; 
and  made  a  half-hearted  attempt  to  fill  it  with  bricks  and  mortar 
from  the  Institutes.^  But,  in  the  opinion  of  eminent  critics, 
his  treatment  of  this  topic  is  purely  academic,  and  bears  little 
relation  to  the  facts  of  his  day.'* 

Looking,  however,  again  at  Glanville,  we  seem  to  discover 
that,  under  the  disguise  of  'diracionatio'  or  '  probatio,' ^  con- 
Debt  and  tracts  (for  Glanville  expressly  uses  the  term)®  are 
Contract  making  their  way,  into  the  action  of  Debt.  And  this 
ought  not  to  surprise  us  ;  for,  as  we  have  seen,  ^  an  action  of  Debt 
was  originally  an  action  to  recover  a  chattel ;  and,  as  we  also 
know,  both  from  general  sources  and  Old  English  law  in  particu- 
lar,^ the  delivery  or  pledge  of  a  chattel  was  one  of  the  earliest 
known  means  of  securing  the  performance  of  an  undertaking. 
How  does  this  apparently  irrelevant  treatment  lead  to  anything 
like  a  recognition  of  a  Law  of  Contract  ?    Apparently,  in  this  way. 

The  man  who  brings  an  action  of  Debt  must  show  some  ground 
for  his  assertion  that  tlie  defendant  ought  to  render  to  him  the 

1  Cap.  XV  (S.C.  140).  »  Lib.  X,  cap.  18. 

3  Lib.  Ill,  cap.  2  (ff.  99-101). 

*  Bracton  and  Azo  (S.S.  Vol.  8).  See  Introd.  pp.  xix,  xx. 
'  Lib.  X,  cap.  12.  '  Ante,  p.  57. 

^Ibid.,  cap.  18.  ^  Ante,  p.  13. 


66    A   SHORT  HISTORY  OF  ENGLISH  LAW 

sum  of  money  or  other  thing  that  he  is  claiming.^  He  must  show 
that  he  gave  the  article  as  a  pledge,  and  that  he  has  redeemed  it, 
or  is  prepared  to  redeem  it.-  He  must  allege  that  the  defendant 
gave  himself  as  security  for  A's  debt,  and  that  A  is  in  default;^ 
or  that  he  (the  plaintiff)  hired  to  the  defendant  the  article 
claimed  ;^  or  sold  to  him  the  chattel,  the  price  of  which  he  is  seek- 
ing to  recover.^  Only  in  one  case  does  Glanville,  in  his  famous 
Book  on  Debts,  recognize  anything  that  we  should  call  a  '  purely 
executory  contract.'  This  is  when  the  plaintiff'  produces  in 
court  a  charter  bearing  the  defendant's  seal.  Then  the  defendant 
'will  be  held  to  warrant  without  contradiction  all  that  is  con- 
tained in  that  charter.'  ^  But  as  to  the  kind  of  claim  a  charter 
may  be  brought  to  enforce,  Glanville  says  nothing ;  and  it  is 
quite  possible  that,  at  first,  it  was  only  in  support  of  a  common 
claim  for  money  lent,  as  we  should  say,  'on  a  bond,'  that  such 
a  proof  could  be  adduced.  The  real  difficulty  for  the  modern 
reader  of  Glanville's  book  is,  that  his  author  does  not  clearly 
distinguish  between  the  nature  of  a  transaction  and  the  proof  of 
it.  If  we  take  his  words  literally,  he  seems  to  demand  that,  for 
every  action  of  Debt,  there  must  either  be  (a)  pledge,  (6)  surety, 
(c)  causa  —  i.e.  some  well-recognized  and  familiar  transaction, 
such  as  sale,  hiring,  gratuitous  loan  of  a  chattel,  and  the  like. 
Illogical  as  this  classification  may  sound,  it  is  not  at  all  unlike 
the  kind  of  classification  which  one  meets  with  everywhere  in 
early  law.  Once  more  we  must  remember,  that  the  sharp 
•distinction  of  ideas  with  which  we  are  familiar  is  a  very  modern 
thing. 

But  if  this  view  of  Glanville's  meaning  is  correct,  we  have  the 
beginnings  of  a  Law  of  Contract.  It  is  only  necessary  to  increase 
the  list  of  causaej  and  we  shall  increase  the  list  of  contracts. 
It  is  true,  that  a  Law  of  Contract  based  on  causae  will  always  be 
an  arbitrary  and  inelastic  law ;  but  it  is  a  kind  of  law  with  which 

'  It  is  true  that  the  first  example  of  the  Writ  of  Debt  Riven  by  Glanville  (lib.  X, 
cap.  2)  contains  nothing  but  a  bare  demand  of  money.  But  this  seems  to  be  a  mere 
skeleton  form.     The  statement  in  cap.  12  is  explicit. 

»Capp.  7,  9.  3  Cap.  4.  "  Cap.  18.  ^  Cap.  14.  "  Cap.  12. 

'  A  very  promising  opening  appears  in  the  action  of  Debt  on  a  sale  (Glanville, 
lib.  X,  cap.  14).  In  all  probability,  this  action  was  at  first  given  only  when  the 
article  or  the  price  had  already  been  handed  over,  and  it  would  have  been  iniquitous 
to  allow  the  other  party  to  refuse  to  fulfil  his  share  of  the  bargain.  But,  when 
Glanville  wrote,  the  sale  was  'perfected'  as  soon  as  the  price  was  fixed  —  a  rule 
which  will  account  for  the  'passing  of  the  property'  without  delivery.  Bracton 
protested  against  this  conclusion  (lib.  II,  cap.  17  (1)),  but  in  vain. 


THE   LAW  OF   CHATTELS  67 

some  great  nations  are  satisfied  at  the  present  day.  It  is,  in 
fact,  one  of  the  unique  pecuHarities  of  Enghsh  law  that,  having^ 
started  on  this  unpromising  road  of  causae,  it  should  very  soon 
have  abandoned  it  for  the  broad  highway  of  '  innominate  '' 
contracts.  But  that  is  a  story  which  belongs  to  the  next  period. 
Finally,  we  may  note  that,  to  the  very  close  of  this  period, 
there  is  nothing  that  would  satisfy  the  modern  definition  of  a 
Tort,  as  a  purely  civil  wrong,  not  being  a  breach 
of  contract,  and  remediable  only  in  damages.  The 
private  citizen  could  (under  difficulties)  bring  his  '  appeal  of 
felony,'  sue  out  his  Writ  of  Right,  Assise  of  Novel  Disseisin, 
or  Writ  of  Entry,  or  even  his  Writ  of  Trespass.  But  even  this 
last  remedy,  though  it  is  now  classed  as  an  action  of  Tort,  is 
anomalous  in  that  connection.  It  aimed  originally,  and,  to  a 
certain  extent,  aims  still,  at  punishment,  rather  than  compensa- 
tion —  at  fine  and  imprisonment,  rather  than  'damages'  in  the 
modern  sense.  It  was  not  long  before  English  Law  took  the  one 
step  needed  to  produce  the  modern  scheme  of  legal  remedies. 
And  when  it  did,  it  used  the  W>it  of  Trespass  as  the  starting 
point.  For,  as  our  masters  have  told  us,  "  the  King's  courts 
were  approaching  the  field  of  tort  through  the  field  of  crime."  ^ 

1  p.  &  M.  II,  530.     The  writer's  reasons  for  thinking  that  this  is  a  truer  view  of 
the  situation  than  that  of  Sir  Henry  Maine,  will  be  found  at  p.  13,  ante. 


PERIOD    III 

EDWARD   I  TO  THE   COMMONWEALTH 
1272-1660 


AUTHORITIES 

Statutes  of  the  Realm  (including  Acts  and 
Ordinances  of  the  Interregnum),  ed. 
Firth  and  Rait  (Stationery  Office, 
1911,  3  vols.). 

Registrum  Brevium,  ed.  Fitzherbert. 


Year  Books. 

(New  edition  proceeding  in  S.S.  pub- 
lications.) 

Littleton.     Tenures. 

Fortescue.    De  Laudibus  Legum  Anglice. 

Fitzherbert.     (Novel)  Natura  Brevium. 

Coke.    Institutes. 

I.   Commentary  on  Littleton. 
II.   Commentary  on  certain  statutes. 

III.  High  Treason. 

IV.  Jurisdiction. 
Compleate  Copyholder. 
Book  of  Entries. 

Reports  by  various  reporters  (quoted  in 
footnotes) . 

West.  Symbolaeographia. 


TEXT-BOOKS 

Ames,  J.  B.  Origin  of  Uses  and  Trusts 
(Select  Essays  in  Anglo-American 
Legal  History,  II,  737-752). 
History  of  Parol  Contracts  Prior  to, 
and  of.  Assumpsit  (Select  Essays  in 
Anglo- American  Legal  History,  III, 
259-319). 
The  History  of  Trover  (Select  Essays 
in  Anglo-American  .  Legal  History, 
III,  417-445.) 


Caillemer,  R.  The  Executor  in  Eng- 
land (Select  Essays  in  Anglo- Ameri- 
can Legal  History,  III,  746-769). 

Campbell.  Lives  of  the  Chancellors  (not 
entirely  trustworthy  in  detail). 

Gross,  C.  The  Mediaeval  Law  of  In- 
testacy (Select  Essays  in  Anglo- 
American  Legal  History,  III,  723- 
745). 

Holdsworth,  W.  S.  A  History  of  Eng- 
lish Law,  Book  II,  Part  I,  chapters 
Ill-end,  and  Part  II  (Methuen, 
1909). 

Holmes.  The  Common  Law  (Macmillan, 
1882). 

Maitland,  F.  W.  Canon  Law  in  Eng- 
land (Methuen). 

English  Law  and  the  Renaissance 
(Select  Essays  in  Anglo-American 
Legal  History,  I,  168-207). 

The  History  of  the  Reji^ter  of  Original 
Writs  (Select  Essays  in  Anglo- 
American  Legal  History,  II,  549- 
596). 

Scrutton.  Land  in  Fetters  (1886),  Co7n- 
7nons  and  Common  Fields  (1887). 

Sedgwick,  A.  G..  and  Wait,  F.  S.  The 
History  of  the  Action  of  Ejectment 
(Select  Essays  in  Anglo-American 
Legal  History,  III,  611-645). 


Stephen.  History  of  the  Criminal  Law 
of  England,  chapters  iv-x  (Mac- 
millan, 1883,  3  vols.). 


•  \ 


CHAPTER  VI 

THE  TRIUMPH  OF  THE  KING'S  COURTS 

THE  long  period  which  we  must  now  attempt  to  survey 
is,  at  first  sight,  lacking  in  unity.  Politically  and 
constitutionally,  it  begins  with  a  strong  but  progressive 
monarchy,  followed  by  a  period  of  internal  disturbance, 
verging  on  anarchy,  itself  succeeded  by  a  strong  and  brilliant, 
but  stern  and  somewhat  unsympathetic  autocracy,  finally,  by 
a  political  convulsion  which  shakes  the  State  to  its  foundations. 
And  yet,  disjointed  as  the  period  is  to  the  student  of  public 
or  constitutional  law,  to  the  student  of  private  law  it  is  marked 
by  a  singular  and  steady  unity,  which  makes  it  one  period 
for  his  purpose.  The  outstanding  feature  is  the  slow  but  relent- 
less crushing  out,  by  the  King's  courts,  of  those  many  rivals 
which,  as  we  saw,  divided  with  them  the  administration  of  justice 
at  the  close  of  the  preceding  period.  The  preceding  chapters 
have  attempted  to  show  how  the  way  was  prepared  for  this 
achievement ;  it  will  now  be  well  to  say  a  few  words  as  to  the 
steps  by  which  it  was  accomplished. 

We  have  seen  ^  how  skilfully  the  royal  officials  of  the  Norman 
and  Angevin  reigns,  especially  the  reign  of  Henry  II,  had  under- 
The  Feudal  mined,  whilst  professing  to  respect,  the  fundamental 
Courts  feudal  principle,   that   questions  of  land  tenure  are 

for  the  decision  of  the  lord  of  the  disputants,  of  whom  they  hold 
their  lands.  In  some  countries,  this  principle  went  far  beyond 
the  bare  claim  to  decide  land  suits ;  it  involved  claims  to  High, 
Middle,  and  Low  Justice  of  all  kinds.  Thanks  to  the  circum- 
stances of  the  Norman  Conquest,  and  to  the  virility  and  political 
genius  of  the  Norman  and  Angevin  kings,  such  claims  were  never 
successfully  established  in  England,  save  in  the  rare  cases  of  the 
Palatinate  earldoms ;  the  many  judicial  franchises  claimed  by 
the  Church  and  the  lay  barons  in  the  thirteenth  century  were 

1  Ante,  pp.  48-51. 


72    A   SHORT  HISTORY  OF  ENGLISH  LAW 

rather  appropriations  of  the  old  local  moots  than  assertions  of 
independent  feudal  right.  These  were  carefully  regulated  by 
the  Statute  of  Gloucester,  passed  in  the  year  1278,  ^  after  the 
compilation  of  the  Hundred  Rolls,  with  a  view  to  the  holding 
of  the  great  '  Quo  Warranto  '  enquiry ;  and  though  it  was 
certainly  deemed  necessary,  so  late  as  the  years  1391  and  1392,  to 
enact  that  '  from  henceforth  none  of  the  King's  subjects  be  forced, 
compelled,  nor  in  an}'  way  constrained,  to  come  or  appear  before 
the  Council  of  any  Lord  or  Lady,  there  to  answer  concerning 
his  freehold,'  ^  yet  it  may  fairly  be  surmised,  that  this  necessity 
was  due  rather  to  the  general  disturbance  of  that  period,  than  to 
any  serious  revival  of  feudal  jurisdiction. 

But  the  final  blow  which  destroyed  the  feudal  courts  did 
not  fall  until  the  fifteenth  century.  Even  the  statutes  of  1391  and 
h  Id  "^'^^~  SP^^^  only  of  freeholders ;  from  which  it  may 
be  inferred,  that  there  was  as  yet  no  suggestion  of 
interfering  with  a  lord's  feudal  jurisdiction  over  his  serfs,  at  any 
rate  in  questions  relating  to  their  tenements.  But  we  remember 
that  it  was  just  precisely  in  the  reign  of  Richard  II  that  the 
Peasants'  War,  following  upon  the  changes  wrought  by  the 
visitations  of  the  Great  Plague,  virtually  destroyed  serfdom  as 
a  personal  status.  It  is  not,  therefore,  surprising  to  find  that, 
half  a  century  later,  the  villein  tenants,  or  copyholders  as  they 
were  by  that  time  called,  ^  had  succeeded  in  obtaining  the  protec- 
tion of  the  King's  courts  for  their  holdings.  In  language  of 
extreme  caution,  which  marks  the  novelty  of  the  proposition, 
Littleton  admits*  that,  though  a  tenant  in  villenage  holds, 
in  theory,  at  the  will  of  his  lord,  yet  eminent  authorities  have 
stated  from  the  Bench  that,  if  such  a  tenant,  duly  rendering  his 
services,  should  be  ejected  by  his  lord,  'he  shall  have  an  action 
of  trespass  against  him.'  For  some  little  time  longer,  the  King's 
courts  hesitated  to  interfere  when  the  dispute  was  merely  between 
rival  claimants  of  the  tenement,  in  which  case  the  lord  would, 

>  6  Edw.  I. 

'  15  Ric.  II,  c.  12;    confirmed  in  the  following  year  (16  Ric.  II,  c.  2). 

'  Because  the  particulars  of  their  holdings  were  entered  on  the  rolls  or  records 
of  the  manor,  and  copies  of  such  entries  were  (and  are)  in  practice  used  as  title- 
deeds.  The  practice  of  keeping  such  rolls  became  universal  after  the  Inquest  which 
resulted  in  the  compilation  of  the  Hundred  Rolls. 

*  Tenures,  a.  77.  Littleton's  famous  treatise  was  written  in  the  last  quarter 
of  the  fifteenth  century.  (Dr.  Holdsworth  informs  one  that  the  passage  alluded 
to  was  not  incorporated  into  it  till  1530.) 


TRIUMPPI  OF  THE   KING'S   COURTS      73 

presumably,  be  impartial.  But,  ultimately,  by  the  indirect 
method  of  a  '  Mandamus,'  or  order  to  the  lord  to  carry  out  the 
view  taken  of  such  a  dispute  by  the  King's  court,  the  royal  judges 
assumed  control  in  such  matters  also;  and,  by  the  end  of  this 
period,  the  law  of  copyholds  had  become  part  of  the  common  law, 
in  the  sense  that  it  was  recognized  and  enforced  by  the  King's 
courts,  though  an  indelible  mark  of  its  origin  still  survives,  in 
the  rule  that  each  holding  is  governed  by  the  local  custom  of 
the  manor,  in  all  those  points  not  deemed  to  be  'unreasonable.' 
The  change  is  marked  in  legal  literature  bj^  the  appearance  of 
Coke's  little  treatise  entitled  TJie  Comyleate  Copyholder,  WTitten 
about  1630.  The  change  virtually  put  an  end  to  feudal  juris- 
diction in  England. 

The  triumph  of  the  royal  jurisdiction  over  the  old  popular 
courts  was  equally  complete.  We  have  seen^  that,  according 
The  Popular  to  Fitzherbert,  the  new  action  of  Trespass,  which  was 
Courts  iq  work  such  a  revolution  in  legal  procedure,  could  be 

heard  before  the  sheriff  in  the  County  Court  as  well  as  before  the 
King's  justices.  After  all,  the  sheriff  was  a  royal  officer;  and, 
in  a  way,  the  County  Court  was  a  royal  court .^  INIoreover, 
a  chapter  of  the  famous  Statute  of  Gloucester,  of  1278,^  expressly 
affirms  the  jurisdiction  of  the  sheriff  in  pleas  of  Trespass,  and 
enacts  that  such  pleas  shall  not  come  before  the  royal  justices, 
unless  the  plaintiff  will  swear  that  he  has  lost  goods  to  the  value 
of  forty  shillings  —  a  large  sum  in  1278.  But,  somehow,  this 
clause  was  interpreted  in  a  way  exactly  opposite  to  its  apparent 
intention ;  and  it  became  a  maxim  that  no  claim  could  be  heard 
in  the  County  Court,  if  it  were  for  more  than  forty  shillings. 
As  the  value  of  money  steadily  sank,  this  maxim  steadily  reduced 
the  scope  of  the  County  Court  jurisdiction ;  and,  though  that 
court  lingered  until  the  eighteenth  century,  its  vitality  was 
gone.  The  still  more  humble  Hundred  Court,  having  largely 
fallen  into  private  hands,  went  the  way  of  the  feudal  jurisdictions  ; 
and,  though  it,  like  the  County  Court,  lingered  on  until  the 
establishment  of  the  new  statutory  '  County  Courts  '  in  the 
year  1848,  it  was  rather  as  a  'franchise'  or  form  of  feudal  prop- 

»  Ante,  p.  53. 

'  Not  only  did  the  early  kings,  as  has  been  said,  encourage  the  holding  of  the 
Shire  and  Hundred  courts;  they  described  them  in  ofiRcial  documents  as  'our 
courts'  (see,  for  example,  the  Writ  of  Tolt,  in  Blackstone,  Comm.,  Ill,  Appx.  I). 

'6  Edw.  I,  c.  8  (1). 


74    A  SHORT  HISTORY   OF   ENGLISH  LAW 

erty,  than  as  part  of  the  system  of  administering  justice.  In 
the  form  of  property,  it  can  be,  and  is,  claimed  at  the  present  day. 
The  activity  of  the  Church  courts  was  great  until  the  Reforma- 
tion ;  and,  before  that  momentous  change,  the  King's  courts 
Church  found   in  them  formidable  rivals.     At  the  very  be- 

°^'^^  ginning  of  the  period,  the  so-called  statute  of  Cir- 

cumspecte  Agatis,^  makes  handsome  admissions  as  to  the  com- 
petence of  ecclesiastical  tribunals ;  though  it  incidentally  affirms 
the  hotly  contested  claim  of  the  royal  judges  to  issue  Writs  of 
Prohibition  when  the  Church  courts  are  exceeding  their  juris- 
diction. The  famous  Statute  of  Heresies,  in  1414,-  virtually 
gave  the  ecclesiastical  judge  the  power  of  life  and  death,  as  well 
as  forfeiture,  over  laymen.  Even  the  Reformation,  though  it 
affirmed  the  sovereign  judicial  supremacy  of  the  Crown,  and  vir- 
tually destroyed  the  legislative  independence  of  the  Church,  did 
not,  at  first,  seriously  curtail  the  jurisdiction  of  the  Church 
courts.  It  was  not  until  the  greatly  abused  privilege  of  '  benefit 
of  clergy  '  was  taken  in  hand  by  Parliament,  that  a  serious  breach 
was  made  in  ecclesiastical  jurisdiction ;  for  the  failure  of  the 
royal  judges  to  maintain  the  compromise  laid  down  by  the  Con- 
stitutions of  Clarendon  on  the  subject  of  '  criminous  clerks,'  ^ 
is  the  one  striking  defeat  in  their  history.  But  a  statute  of  1531  ■* 
deprived  all  but  genuine  clerics  of  the  privilege  of  exemption 
from  criminal  liability,  in  serious  charges,  and,  five  years  later,  ^ 
the  deprivation  was  extended  to  genuine  clerics.  A  statute  of 
Elizabeth^  effected  a  sweeping  reform  in  this  direction;  and 
thus  the  most  scandalous  of  all  ecclesiastical  privileges  tended  to 
disappear.  The  greatest  changes  were,  however,  brought  about 
by  the  Civil  War.  For,  though  the  statute  of  the  Long  Parlia- 
ment, which  abolished  episcopacy  and  ecclesiastical  jurisdiction 
in  '  root  and  branch,'  was  formally  repealed  at  the  Restoration,^ 
much  of  the  work  formerly  done  by  the  Church  courts  had,  during 
the  Commonwealth,  been  performed  by  the  secular  courts ;  and 
the  successors  of  these,  though  they  paid  lip-service  to  the  restored 

'  Now  generally  attributed  to  the  year  1285,  and  printed  as  13  Edw.  I,  st.  IH. 

2  Hen.  V,  c.  7. 

'  Cap.  Ill  (S.C.  138).  The  failure  was,  doubtless,  due  to  the  horror  excited  by 
the  murder  of  Beeket. 

<  23  Hen.  VIII.  c.  1.  ^  28  Hen.  VIII,  c.  1.  «  18  Eliz.  (1576)  c.  7. 

">  13  Car.  II  (16G1)  st.  I,  cc.  2,  12.  (But  the  latter  statute  contains  significant 
restrictions.) 


TRIUMPH  OF  THE   KING'S   COURTS      75 

Church,  were  resolutely  bent  on  retaining  their  newly-acquired 
jurisdiction.  The  wonder  really  is,  not  that  the  Church  courts 
should  have  lost,  during  the  Interregnum,  practically  all  their 
jurisdiction  in  such  matters  as  defamation,  fraud,  and  perjury, 
but  that  they  should  have  succeeded  in  recovering  jurisdiction 
in  matrimonial  and  testamentary  matters. 

Over  the  last  of  their  serious  rivals,  the  mercantile  courts 
of  the  borough  and  the  gild,  the  royal  jurisdiction  won  no  com- 
The  Courts  plete  triumph  in  this  period.  The  medieval  line  of 
Merchant  distinction  between  the  merchant  and  the  ordinary 
citizen  was  breaking  down ;  though  the  restriction  of  the  new 
bankruptcy  jurisdiction,  set  up  by  Henry  VIII  and  developed 
by  Elizabeth  and  James  I,^  to  the  merchant  or  trading  class, 
served  to  perpetuate  it.  The  publication  of  Malynes'  Lex 
Mercatoria  in  the  early  seventeenth  century,  by  revealing,  to  a 
profession  always  eager  to  extend  the  sphere  of  its  operations,  a 
new  and  profitable  territory,  must  have  done  a  good  deal  to 
prepare  the  way  for  the  change  which  took  place  in  the  next 
period,  under  the  auspices  of  Lord  INIansfield.  The  break-down 
of  the  old  exclusive  trading  privileges,  which  followed  on  the 
expansion  of  world-commerce  after  the  great  discoveries  of  the 
fifteenth  and  sixteenth  centuries,  must  have  also  laid  open  the 
secret  monopolies  of  the  mercantile  courts.  But  we  should  do 
wrongly  to  suppose  that,  by  the  time  of  the  Restoration,  the 
King's  courts  were  thoroughly  familiar  with  mercantile  trans- 
actions. 

Not  unnaturally,  we  find  it  easier  to  describe  the  sources  of 
this  unified  Common  Law  than  it  was  to  range  the  scattered 
materials  for  the  previous  period.  For  now^  the  canons 
of  legal  authority  were  becoming  firmly  settled ;  and 
judges  and  pleaders  no  longer  considered  themselves  justified 
in  clutching  at  any  text  which  would  serve  their  purpose.  In 
other  words,  the  meaning  of  the  term  'source,'  always  ambiguous 
in  legal  literature,  undergoes  a  change  in  this  period.  We-jnust 
not  think  now  of  *  authorities  '  as  being  the  origin  of  legal  rules, 
but  merely  as  the  indisputable  evidence  of  their  existence. 
For  the  King's  courts  have  by  now  adopted  the  celebrated  theory 

»  34  and  35  Hen.  VIII  (1542)  c.  4 ;  13  Eliz.  (1570)  c.  7 ;  1  Jac.  (1603)  c.  15  ;  21 
Jac.  (1623)  c.  10.  The  first  of  these  statutes  is  not  in  terms  confined  to  traders  ;  but 
the  last  three  are.  Their  whole  machinery  was  worked  through  the  royal  judges. 
It  must  have  done  much  to  familiarize  them  with  mercantile  law. 


76    A   SHORT  HISTORY  OF  ENGLISH   LAW 

of  the  immemorial  antiquity  of  the  Common  Law;  and  are 
loth  to  admit  that  it  can  be  changed  or  created  by  liuman 
agency,  even  by  Parliamentary  statutes.  But  they  will  admit 
that  there  are  certain  records  or  monuments  whose  testimonj^  is 
unimpeachable.  Where  these  are  silent,  it  is  the  duty  of  the 
judges  themselves  to  apply  existing  principles  to  the  new  facts. 
The  famous  theory  was,  perhaps,  on  the  whole,  the  wisest  that 
could  have  been  adopted.  If  it  led  to  a  somewhat  oppressive 
conservatism,  it  served  as  a  strong  barrier  against  arbitrary 
despotism. 

Foremost  among  the  sources  of  this  period,  are  the  Acts  of 
Parliament,  which,  from  the  establishment  of  the  great  scheme 
statutes  of  of  Edward  I  in  1295,  increase  in  volume  and  number, 
the  Realm  gome,  however,  of  the  most  important  statutes  in  the 
Book,  such  as  those  of  Westminster  (I  and  11),^  Gloucester,-  and 
Winchester,^  come  before  the  definite  and  final  Parliamentary 
scheme  of  1295  ;  and,  at  least  until  the  end  of  the  reign  of  Edward 
II,  there  was  a  good  deal  of  difficulty  in  distinguishing  technically 
between  a  true  Act  of  Parliament,  an  Ordinance  of  the  Council,* 
a  Writ  of  general  import  issued  by  the  King,^  and  even  a  privately 
compiled  report  which  had  commended  itself  to  people  in  au- 
thority.^ Perhaps  this  is  the  reason  why,  on  the  introduction 
of  printing,  the  compilers  of  the  first  printed  editions  of  the  Statute 
Book  began  their  collections  with  the  accession  of  Edward  III ;  ^ 
later  editions  produced  the  older  and  omitted  documents,  under 
the  title  of  Antiqua  Statuta.^  There  is  not  even  agreement  as 
to  the  authoritative  form  of  such  documents.  Perhaps  the 
orthodox  view  is,  that  everything  which  appears  on  the  Chancery 
Statute  Rolls  (which  run  from  1278  to  1469)  is  authoritative; 
and  nothing  else  for  that  period.^  But,  from  the  year  1290,  it 
was  the  practice  also  to  record  statutes  on  the  Rolls  of  Parliament, 

1  3  Edw.  I  (1275)  ;   13  Edw.  I  (1285)  st.  I. 

*6  Edw.  I  (1278). 

'  13  Edw.  I  (1285)  St.  II. 

*  E.g.  the  'Statute  of  Merchants,'  or  'Acton  Burnel'  (1283). 
^  E.g.  '  Circumspecte  Agntis,'  attributed  to  1285. 

*E.g.  'Modus  Levandi  Fines'  (printed  as  18  Edw.  I  (1290)  st.  IV). 
'  Afterwards  called  the  Nova  Statuta. 

•  The  first  attempt  (by  Pynson)  wa.**  incomplete.  It  was  supplemented  by  Ber- 
thelet  in  his  Securida  Pars  Veterum  Statutorum. 

'  From  1407  onwards,  the  Acts  so(>m  to  have  been  engrossed  separately  and  re- 
tained in  the  custody  of  the  Clerk  of  the  Parliaments.  Certified  transcripts  are, 
however,  sent  to  the  Record  Office. 


TRIUMPH  OF  THE   KING'S   COURTS      77 

which  contain  matter  of  all  kinds;  and  it  has  been  judicially 
assumed  that  the  Rolls  of  Parliament  are  also  authoritative.^  At 
first  the  statutes  were  recorded  indifferently  in  French  and  Latin  ; 
from  the  accession  of  Henry  VII,  they  appear  to  have  been  passed 
and  recorded  in  English. 

Of  hardly  less  importance  than  the  Statute  Book,  as  an  author- 
ity for  the  law  of  this  period,  is  the  so-called  Registrum  Brevium, 
The  ^^^  collection  of  the  writs  used  for  beginning  or  carry- 

Register  ing  on  legal  proceedings.  Of  the  origin  of  this  collection, 
something  has  previously  been  said  ;^  but  its  origin  is  far 
easier  to  understand  than  its  character.  The  perverse  thing  about 
it  (to  modern  ideas)  is,  that  there  was  no  official  or  absolutely 
conclusive  edition  or  text  of  the  Register ;  no  standard  to  which 
copies  could  be  referred  if  their  accuracy  was  questioned.  It  is 
easy  to  understand  that  such  a  compilation  would  require,  as 
we  should  say,  re-editing  from  time  to  time;  as  additions  and 
corrections  were  rendered  necessary  by  legislation  and  judicial 
decision.  But  that  is  not  the  point.  The  point  is  that,  even 
though  what  purported  to  be  an  authoritative  copy  of  the  Register 
was  sent  to  Ireland  in  1227,^  on  the  introduction  of  English  Law 
into  the  Pale,  yet,  in  truth,  no  official  edition  ever  existed.  Many 
copies  were  in  the  hands  of  the  Chancery  officials ;  but  there  is 
no  reason  to  suppose  that  they  were  identical  —  the  probability 
is  all  the  other  way.  Many  copies  found  their  way  into  private 
hands ;  they  would  be  precious  possessions  for  pleaders  and  liti- 
gants. But  whether  a  form  of  writ  found  in  any  copy  of  the 
Register  was  authentic,  would  depend  upon  the  view  taken  by 
the  clerk  to  whom  application  was  made  for  its  issue,  and, 
ultimately,  on  the  attitude  of  the  Court  which  tried  the  action. 

As  is  well  known,  an  important  statute,  dating  from  the  very 
commencement  of  this  period,  professed  to  lay  it  down  that 
Consimiiis      new  writs  were  to  be  framed  whenever  occasion  for 

*^"^  them  arose.^     It  is  easy  to  exaggerate  both  the  im- 

portance and  the  failure  of  this  celebrated  Consimiiis  Casus  clause. 
A  study  of  the  statute,  which  is  evidently  concerned  with  minor 

'  Earl  of  Macclesfield's  Case  (1725)  16  St.  Tr.  pp.  1388-1390. 

*  Ante,  pp.  45-6. 

'  On  this  and  all  other  points  connected  with  the  early  history  of  the  Register, 
students  should  consult  the  brilliant  series  of  articles  by  the  late  Professor  Maitland, 
published  in  the  Harvard  Law  Review  for  1889,  and  reprinted  in  the  Select  Essays 
in  Anglo-American  Legal  History  (II,  549-596). 

<  Statute  of  Westminster  the  Second  (13  Edw.  I  (1285)  c.  24). 


78    A   SHORT   HISTORY  OF   ENGLISH  LAW 

technical  objections  rather  than  with  defects  of  principle,  may 
well  cause  us  to  doubt  whether  the  Parliament  of  1285  intended 
to  place  in  the  hands  of  the  Chancery  clerks  ^  what  appears,  at 
first  sight,  to  be  practically  an  unlimited  power  to  make  new  law. 
On  the  other  hand,  the  great  and  undeniable  development  of 
the  Action  of  Case,  which  followed  swiftly  upon  the  passing  of 
the  statute,  seems  to  suggest  that,  though  the  inventive  vigour 
and  bold  spirit  of  innovation  which  had  characterized  the  judges 
of  Bracton's  day,  had  been  replaced  by  the  more  timid  and  con- 
servative attitude  of  their  successors  in  the  fourteenth  century, 
yet  that  the  Register  of  Writs  remained  a  flexible  and  expanding 
document  until  the  commencement  of  the  sixteenth  century. 
By  that  time,  the  invention  of  printing  had  come  to  revolutionize 
the  world ;  and  editions  of  the  Register  promptly  appeared 
in  the  new  stereotyped  form.  Then  the  days  of  expansion  were 
really  over.  Rastell's  edition  of  1531  was  made  by  Fitzherbert 
the  basis  of  his  celebrated  commentary ;  ^  but  Theloall's  edition 
of  1579  seems  ultimately  to  have  been  accepted  as  the  quasi- 
official  version. 

Hardly  less  anomalous  than  the  Register  of  Writs,  and  still 
more  mysterious,  are  the  celebrated  Year  Books,  which  profess 
to  be  reports  of  cases  decided  in  the  King's  courts  between  the 
middle  of  the  thirteenth  and  the  middle  of  the  sixteenth  cen- 
The  Year  turies.  They  are  entirely  anonymous,  and,  as  their 
®°°^^  popular  title  implies,  are  grouped  under  the  regnal 

years  of  the  various  kings  with  whose  reigns  they  deal.  It  was, 
apparently,  these  two  facts  which,  supported  by  certain  mis- 
understood words  of  Plowden,  Coke,  and  Sir  Francis  Bacon,  begot 
the  extraordinary  legend  that  the  Year  Books  are  official  com- 
pilations, drawn  up  by  the  prothonotaries  or  other  officials  of 
the  various  courts,  appointed  and  paid  for  the  purpose.  That 
such  a  belief  should  be  held  by  intelligent  men  who  had  actually 

*  This  statutory  provision  produced  a  yet  further  classification  of  Writs  Original 
into  (a)  De  Cursu,  or  writs  of  course  in  the  strictest  sense,  issued  by  the  Cursitors 
on  payment  of  the  ordinary  fee,  and  (h)  Magistralia,  i.e.  those  issued  by  the  Clerk 
or  Masters  in  Chancery  under  the  Statute  of  1285. 

^  New  Nalura  Brevium.  Many  editions,  of  which  the  most  convenient  for  students 
is  that  which  appeared  in  English  in  the  eighteenth  century,  with  notes  attributed 
to  Sir  Matthew  Hale  and  Sir  W  adhani  Windham.  The  word  "  New  "  in  Fitzherbert's 
title  is  due  to  the  fact  that,  as  he  himself  says  in  his  brief  Preface,  a  previous  com- 
mentary (generally  described  as  the  Old  Nalura  Brevium)  had  appeared,  and  had 
been  vulgarized  by  being  translated  into  English.  In  the  early  sixteenth  century, 
it  was  still  heretical  to  write  in  English. 


TRIUMPH  OF  THE   KING'S   COURTS      79 

made  acquaintance  with  the  Year  Books,  seems  well-nigh  im- 
possible ;  nothing  more  unlike  an  official  publication  can  well  be 
imagined.  And  yet,  that  it  was  the  accepted  view  of  the  eight- 
eenth century,  seems  proved  by  the  well-known  passage  in 
Blackstone's  Commentaries,^  in  which  that  great  writer  states 
it  without  a  shadow  of  suspicion  or  comment.  Perhaps  the 
true  explanation  is,  that  the  Year  Books  had  ceased  to  be  read 
in  their  original  form  by  the  end  of  the  seventeenth  century ; 
having  been  superseded  by  the  Abridgements  of  Fitzherbert, 
Brooke,  Rolle,  Hale,  and  other  eminent  and  industrious  analyists. 
For  this  fact,  if  it  be  a  fact,  there  was  every  excuse.  If  the 
editions  of  the  Register  are  confusing,  the  older  printed  editions 
of  the  Year  Books  ^  are  a  weltering  mass  of  inaccuracies  and 
contradictions,  through  which  none  but  a  specially  trained  expert 
can  make  his  way.  It  is  one  of  the  many  reasons  for  which  the 
student  of  English  legal  history  laments  the  untimely  death  of 
Professor  Maitland,  that  it  cut  him  off  from  the  completion  of 
the  taslT  which,  at  the  instance  of  the  Selden  Society,  he  had 
undertaken,  of  editing  an  intelligible  and  trustworthy  edition 
of  the  Year  Books.  That  great  scholar  was,  however,  happily 
permitted  to  live  until  he  had  given  to  the  world  three  instal- 
ments of  his  projected  enterprise ;  ^  and  in  the  first  of  these,  in 
the  early  pages  of  a  masterly  Introduction,  the  editor  disposes 
for  ever  of  the  ancient  legend,  and  convinces  us  that  in  the  Year 
Books  we  have,  not  a  dry  official  publication  (for  why,  indeed, 
duplicate  that  magnificent  series  of  records  which  was  every 
year  accumulating  in  the  royal  archives  ?),  but  a  series  of  informal 
notes,  very  human,  very  gossipy,  probably  not  free  from  gross 
inaccuracy,  but,  on  the  whole,  extraordinarily  vivid  and  realistic, 
compiled  by  the  students  and  apprentices  of  the  law,  who  haunted 
the  King's  courts,  and  jotted  down  things  worthy  of  remembrance 
by  themselves  and  those  who  should  come  after  them.  Slowly 
these  note-books  were  accumulated  by  the  practitioners  of  the 
law;^  and,  by  the  end  of  the  period,  were  regarded  with  almost 

'  I,  72. 

'  The  best  known  is  that  printed  in  1679.  But  there  are  fragmentary  printed 
editions  scattered  all  over  the  latter  half  of  the  sixteenth  century. 

^  These  are  vols.  17,  19,  and  20  in  the  S.S.  series.  Two  other  volumes  (22,  24), 
partly  by  other  hands,  have  since  appeared. 

*  The  most  famous  of  the  later  collectors  was  the  great  Serjeant  Maynard.  The 
story  told  by  Roger  North  of  his  passionate  fondness  for  the  Year  Books  is  well 
known,  and  is  reprinted  on  the  title-pages  of  the  Selden  Society's  volumes. 


80     A   SHORT   HISTORY  OF  ENGLISH  LAW 

superstitious  reverence.  Whether  they  can  safely  be  treated 
as  trustworthy,  is  a  problem  which  each  student  must  solve 
for  himself. 

A  few  other  accounts  of  the  decisions  of  the  King's  courts 
in  the  earlier  part  of  this  period  are  available.  The  new  Court 
other  of  Chancery  which  acquired  an  independent  existence 

Reports  g^g  g^  judicial  tribunal  in  the  fourteenth  century,  and 
took  up  the  task  of  expanding  the  common  law^  when  the  Register 
of  Writs  was  inclined  to  drop  it,  was  not  likely  to  be  deficient  in 
the  matter  of  records ;  and  some  of  these  have  been  published 
by  the  Selden  Society.^  The  Court  of  Star  Chamber  had  a 
great  and  permanent  influence  in  the  development  of  the  Common 
Law;  and,  fortunately,  some  accounts  of  its  proceedings  have 
been  preserved  and  published.^  For  the  later  part  of  the  period, 
we  have  the  works  of  the  '  nominate '  reporters  —  Dyer,  Leonard, 
Plowden,  Coke,  Croke,  and  others.  Some  of  these  are  of  high 
merit ;  almost  all  of  them  are  infinitely  easier  for  a  student  to 
understand  than  the  grotesque  language  of  the  Year  Books. 
The  Books  of  Entries,  or  forms  of  pleading,  which  appeared  soon 
after  the  introduction  of  printing,  are  really  in  the  nature  of 
reports ;  for  the  precedents  which  they  give  us  are,  obviously, 
those,  and  only  those,  which  have  stood  the  fire  of  judicial 
criticism.  ^ 

Finally,  a  word  must  be  said  about  the  text-books  of  this 
period;  for,  whatever  may  have  been  their  reception  by  their 
contemporaries,  some  of  them,  at  least,  were  accepted 
as  gospel  by  the  succeeding  generation.  Passing  by 
the  epitomes  of  Bracton's  great  work,  known  under  the  titles  of 
Fleta  and  Britton,  and  the  picturesque  but  untrustworthy  Mirror 
of  Justices,  attributed  to  Andrew  Horn,  Town  Clerk  of  London  in 
the  late  thirteenth  century,^  we  must  mention  the  names  of 

'  To  the  practitioner.  Equity,  the  rules  of  the  Court  of  Chancery,  is  contrasted 
with  the  Common  Law,  or  doctrines  developed  by  the  older  royal  tribunals. 
But,  in  the  historical  sense,  Equity  is  part  of  the  Common  Law,  the  law  administered 
by  the  King's  courts,  and  common  to  all  the  land. 

^Select  Cases  in  Chancery,  edited  by  W.  P.  Baildon  (S.S.  vol.  10).  There  is 
an  older  volume  in  the  Record  Series  {Calendar  of  the  Proceedings  in  Chancery, 
edited  by  J.  Bayley,  3  vols.     1827-1832) . 

'  Select  Pletis  of  the  Court  of  Star  Chamber,  edited  by  I.  S.  Leadam  (S.S.  vols.  16, 
25) ;  Les  Reportes  del  Cases  in  Camera  Stellata  (Hawarde  MS.)  edited  by  W.  P. 
Baildon  (1894,  priv.  print.). 

« Early  compilers  are  Smythe  (1546),  Rastell  (1564),  Coke  (1614). 

'Edited  by  Whittaker  and  Maitland  (S.S.  vol.  7). 


TRIUMPH  OF  THE   KING'S   COURTS      81 

Littleton,    Fortescue,    Fitzherbert,    and    Coke.     The   first  was 

,.  ,  ,  the  author  of  the  treatise  to  which  Coke  has  given  im- 

Littleton  .  .  '^ 

mortality,  viz.  The  New  Tenures,  probably  composed 
in  Norman  French  about  the  year  1475,  but  speedily  translated 
into  English,  and  printed  in  both  languages.^  As  with  Fitz- 
herbert's  Natura  Brevium,  it  had  been  preceded  by  an 
anonymous  treatise  on  Tenures,  which  still  survives,  and,  to 
distinguish  it  from  its  famous  successor,  is  known  as  The  Old 
Tenures.  Littleton's  treatise  is  written  in  the  form  of  letters 
to  the  author's  son,  supposed  to  be  a  student  at  Cambridge; 
and,  if,  as  family  correspondence,  it  appears  to  be  a  trifle  heavy, 
we  may  console  ourselves  with  the  reflection  that,  as  legal  litera- 
ture, it  is  unusually  clear  and  brief.  Separated  from  Coke's 
ponderous  commentary,  it  is  a  mere  pamphlet ;  but  a  pamphlet 
of  which  every  word  has  been  weighed  with  scrupulous  accuracy. 
Fortescue,  whose  work  De  Laiidihus  Legum  Angliae,'^ 
may  be  mentioned,  was  a  contemporary  of  Littleton ; 
a  Lancastrian,  while  Littleton  was  a  Yorkist.  Fortescue  was, 
however,  a  politician  rather  than  a  lawyer ;    and  his  treatise  is 

useful  rather  for  its  general  observations  than  as  a 
Fitzherbert  .  c  i        i        i  t-i-     i       i 

precise  statement  oi  legal  rules.     J^  itzherbert,  whose 

Neiv  Natura  Brevium  has  already  been  mentioned,  lived  half  a 
century  after  Littleton,  was,  like  him,  a  Justice  of  the  Common 
Pleas,  and  was  the  author  also  of  an  Ahridgement  of  the  Year 
Books,  as  well  as  of  treatises  on  The  Diversity  of  Courts 
and  The  Justice  of  the  Peace.  To  him  is  also  attributed, 
though  he  modestly  laid  no  claim  to  it,,  a  deeply  interesting 
Treatise  on  Husbandry,  in  which  we  see  the  beginnings  of  the 
great  dispute  between  the  old-fashioned  open  field  (or  'cham- 
paign ')   farming,   and  the    new   '  several  '  or   enclosed  system. 

Coke's  weighty  volumes  are  known  to  most  students  of 
Coke  . 

law.  His  chief  work  was  his  Institutes  of  the  Laws  of 
England,  in  four  parts ;  the  first  consisting  of  the  famous 
commentary  on  Littleton's  treatise,  the  second  of  an  Exposition 
of  Many  Ancient  and  Other  Statutes,  the  third  of  a  treatise  on 
Pleas  of  the  Crown,  and  the  fourth  of  the  Jurisdiction  of  Courts. 
The  first  two  parts  were  published  in  Coke's  lifetime   (about 

*  Printed  copies  appear  dated  from  1516.     Editions  supposed  to  reach  back  to 
14 Si,  but  undated,  are  extant. 
'  Ed.  Lord  Clermont. 


82    A   SHORT   HISTORY   OF  ENGLISH   LAW 

1628) ;  the  last  two,  somewhat  disfigured  by  the  heat  of  the 
poHtical  combat  into  which  Coke  was  drawn,  after  his  death 
(about  1644).  Beyond  the  Institutes,  Coke  wrote  another  book, 
previously  referred  to,  of  first-class  importance,  viz.  The 
Compleate  Copyholder,  first  published  in  1630,  The  list  of  his 
works  includes  also  the  Little  Treatise  on  Bail  and  Mainprize 
(1635). 

Finally,  reference  should  be  made  to  William  West's  valuable 
Symholaeographia,  or  collection  of  forms  used  by  notaries  and 
scriveners  at  the  end  of  the  sixteenth  century,  published  by 
Tothill  in  1590.  These  have,  of  course,  no  oflEicial  value;  but 
they  throw  great  light  on  the  conveyancing  practice  of  the  day. 
It  is  interesting  to  note  that,  although  attorneys  were  apparently 
excluded  from  conveyancing  (at  least  in  London)  till  the  seven- 
teenth century,  the  author  of  this  collection  was  himself  an 
attorney. 


CHAPTER  VII 

NEW  INTERESTS  IN  LAND 

THE  broad  outlines  of  English  real  property  law  had  been 
drawn  in  the  scheme  of  tenures  described  in  a  previous 
chapter ;  ^  and  they  remained  substantially  unaltered,  in 
theory  at  least,  for  a  period  of  four  hundred  years.  Even  the 
Act  of  Abolition  of  Military  Tenures,^  with  which  the  next  period 
opens,  though  it  removed  a  part  of  the  ancient  fabric  and  some 
picturesque  details  of  the  remainder,  left  the  building  per- 
fectly recognizable.  It  may  be  claimed,  indeed,  that  even  the 
sweeping  legislation  of  the  nineteenth  century  has  not  affected  the 
ground-plan  of  the  edifice ;  though  it  has  revolutionized  the 
internal  arrangements.  At  this  stage,  therefore,  we  have 
but  to  fill  in  the  chief  details  added  to  the  original  scheme  by 
the  later  medieval  judges  and  conveyancers. 

The  original  idea  of  the  scheme  of  tenures  was,  as  we  have 
seen,  based  upon  the  seisin  or  possession  of  land  by  the  tenant. 
Future  This  seisin  might   be  for  life  only   ('  freehold  ')»   or 

Interests  f^j.  ^j^  hereditary  interest  ('  fee ') ;  but,  in  either 
case,  the  tenant  was  seised  '  in  his  demesne,'  i.e.  as  actual  oc- 
cupant or  '  terre-tenant,'  responsible  to  the  State  for  military 
service  and  other  dues,  and,  therefore,  entitled  to  claim  the  pro- 
tection of  the  royal  tribunals. 

But  it  will  be  remembered,  that  the  principle  of  tenure  is 
essentially  relative.  If  it  implies  possession  in  the  tenant,  it 
Reversions  ^^^^  implies  lordship,  with  its  attendant  rights  to 
fealty,  service,  and  other  profits,  in  the  lord.  So 
long  also  as  the  tenant's  interest  was  limited  by  existing  lives, 
the  lord  had  a  substantial  prospect  of  resuming  possession  of 
the  land  after  its  expiry ;  and,  even  after  hereditary  estates 
had  come  to  be  recognized,  in  days  when  the  extinction  of  whole 

^  Ante,  pp.  27-31. 

*  12  Car.  II  (1660)  c.  24.  The  credit  of  the  measure  belongs,  of  course,  to  the 
Long  Parliament,  whose  Act  the  Restoration  Parliament  adopted . 


84    A   SHORT   HISTORY  OF  ENGLISH  LAW 

families  by  war  was  no  uncommon  event,  there  was  the  ultimate 

prospect  of  an   '  escheat '  on  failure  of  the  tenant's  heirs,  or 

corruption  of  his  blood  by  attaint. 

It  is  quite  impossible  to  imagine  that,  in  the  later  years  of 

the   preceding   period,   this   valuable   interest   of   the   lord   was 

not  recognized  as  a  legal  institution.     We  are,  in  fact,  expressly 

told  by  the  famous  Statute  De  Donis,^  that,  in  1285,  the  royal 

Chancery  was  familiar  with  a  writ  framed  for  the  purpose  of 

protecting  a  much  more  shadowy  interest,  viz.  the  right  of  the 

lord  to  recover  the  land  after  the  expiry  of  an  hereditary  estate 

limited  to  the  issue  of  the  tenant  —  of  which  more  presently. 

We   may,   therefore,   fairly   assume  that,    under  the   names   of 

'lordship,'   'seignory,'    'reversion,'  and  other    equivalents,  the 

interest  of  the  lord,  and  particularly  his  right  that  the  land  should 

'revert'  to  him  after  the  expiry  of  the  tenant's  interest,   was 

fully   recognized   by   law,    even   before   the   commencement   of 

the   period   now   under   discussion.     Moreover,    it   was   not   in 

the  least  necessary  that  any  express  claim  to  the  right  should 

have  been  made  when  the  tenure  was  created.     A  reversion 

has  always  been  'an  estate  which  arises  by  operation  of  law.' 

Any    express   reservation    was   merely    redundant,    and,    before 

modern  legislation,  purely  inoperative. 

j    A  different  idea  began  to  develop  when    the  creator    of  a 

tenancy  was  allowed  to  name  a  succession  of  tenants,  instead 

^  .  ,  of  creating  an  hereditarv  estate  —  to  say  that  after 
Remainders  i       i     i      i        i     i      "^i  i  t^  i  tt 

A  was  dead  the  land  should  go  to  B,  and  so  on.     Here 

would  arise  a  difficulty  which,  to  a  primitive  tribunal,  is  always 
formidable,  but,  to  tribunals  which  were  beginning  to  attach  a 
special  value  to  seisin  or  possession,  was  peculiarly  formidable, 
viz.  the  difficulty  of  recognizing  a  claim  not  evidenced  by  posses- 
sion. During  A's  lifetime,  what  was  the  position  of  B  ?  He  was 
merely  a  person  who  might,  if  he  chanced  to  survive  A,  put  in 
a  claim  to  the  land.  But  such  a  claim  must,  in  the  days  when 
most  tenures  were  created  by  word  of  mouth,  have  appeared 
to  be  very  shadowy,  very  likely  to  lead  to  quarrels  between  the 
claimant  and  the  lord  who  desired  to  resume  possession  after 
the  first  tenant's  death.  In  any  case,  it  was  not  an  estate,  but 
a  'mere  right.'     Nevertheless,  there  is  some  reason  to  believe 

'  13  Edw.  I,  c.  1  (4).  It  seems  to  have  been  a  Writ  of  Entry.  Professor  Maitland 
has  traced  it  back  to  the  year  1219  {Bracton'a  Note  Book,  Vol.  II,  54). 


NEW  INTERESTS   IN  LAND  85 

that  even  a  remainder  after  an  estate  of  inheritance  was  be- 
ginning to  be  recognized  by  the  authorities  before  the  death  of 
Henry  III ;  though  we  must  remember  that  Bracton,  from  whom 
we  learn  most  about  it/  is  always  inclined  to  anticipate  the 
slow  development  of  practice.  At  least  we  can  say  that,  at  the 
very  beginning  of  our  present  period,  the  technical  distinction 
between  a  'reversion'  and  a  'remainder'  appears  to  be  familiar 
to  the  framers  of  a  first-class  statute.^ 

But,  when  the  notion  of  the  future  estate  is  once  admitted, 
there  is  no  reason  why  it  should  stop  at  the  simple  limitations  of 
Contingent  the  early  remainders.  The  real  difficulty  had  been, 
Remainders  ^q  persuade  the  courts  that  an  interest  in  land  could 
be  conferred  otherwise  than  by  way  of  corporal  investiture  or 
delivery  —  a  mode  of  creation  obviously  inapplicable  to  a 
future  interest.  That  difficulty  once  overcome,  it  was  certain 
that,  in  course  of  time,  conveyancers  would  claim  to  be  able  to 
dispose  of  future  interests  in  favour  of  persons  unknown  or 
unascertained  at  the  date  of  the  conveyance.  If,  on  the  expiry 
Abeyance  of  the  preceding  estate,  such  persons  were  not  in  a 
of  Seisin  position  to  claim  seisin  of  the  land,  of  course  their 
rights  would  vanish.  The  land  would  either  go  to  the  claimant 
next  in  succession,  or  revert  to  the  lord ;  for  the  seisin  could 
not  be  allowed  to  fall  into  abeyance.  For  a  similar  reason,  the 
donor  could  not,  in  naming  the  order  of  succession,  interpolate 
the  slightest  interval  between  the  expiry  of  one  interest  and  the 
succession  of  the  next.  For  that  also  would  have  been  a  deliber- 
ate provision  for  abeyance  of  seisin. 

Apparently,  this  further  development  was  struggling  to  ob- 
tain recognition  in  the  middle  of  the  fourteenth  century;  for 
Contingent  we  find  it  elaborately  discussed  at  that  time  by 
Remainders  ^^^  ^^^  Court  of  Chancery,  or  at  any  rate  by  the 
Chancellor.^  The  earliest  form  in  which  it  was  attempted  to 
create  contingent  remainders  seems  to  have  been  that  of  a  limi- 
tation to  the  heirs  of  a  living  person.  Now  a  living  person 
cannot,  of  course,  ha ve^n  lieiflnemo  est  haeres  viventis) ;  whence 

'  Lib.  II,  cap.  6  (1).  Bracton  describes  such  a  remainder  as  an  estate  on  con- 
dition. Later  on  (lib.  II,  cap.  31  (3),  he  announces  his  intention  of  setting  out 
the  special  writ  which  will  enable  the  remainder-man  to  get  the  land  when  his  turn 
comes.     Bracton  does  not,  however,  fulfil  his  promise. 

'  3  Edw.  I  (1275)  c.  40  ('lands  or  tenements  .  .  .  which  ought  to  descend,  revert, 
remain,  or  escheat')- 

»Y.B.  38  Edw.  Ill,  Mich.  (1364)  fo.  26. 


86     A   SHORT  HISTORY  OF  ENGLISH  LAW 

it  follows  that,  unless  the  person  in  question  dies  before  the 
right  of  the  remainderman  to  claim  possession  arises,  the  latter's 
right,  for  the  reason  given  above,  is  gone.  But,  in  1364,  the 
Chancellor  said  that  such  a  limitation  would  be  void  from  the 
beginning ;  and  though,  more  than  half  a  century  later,^  it 
seems  to  have  passed  as  good,  the  later  case  was  one  of  a  devise 
under  local  custom,  and  so  does  not  count  for  very  much.  Little- 
ton, who  was  as  inclined  to  be  conservative,  as  Bracton  had  been  to 
take  the  enterprising  line,  says  boldly,  that  'every  remainder 
which  beginneth  by  deed,  it  behoveth  that  the  remainder  be 
in  him  to  whom  the  remainder  is  entailed  by  force  of  the  same 
deed,  before  the  livery  of  seisin  is  made  to  him  which  shall  have 
the  freehold';-  which,  obviously,  could  not  be  the  case  if  the 
remainderman  were  then  unascertained.  By  Coke's  time, 
however,  the  law  had  completely  changed ;  ^  and,  subject  to 
certain  rules  about  remote  or  improbable  contingencies,  the 
lawfulness  of  contingent  remainders  was  then  fully  admitted. 
One  of  the  earliest  and  best  cases  is  that  of  Colthirst  v.  Bejushin, 
in  1550.  *  By  that  time,  also,  the  distinction  between  a  remainder 
and  a  conditional  estate  had  become  clearly  marked  by  the  adop- 
tion of  the  rule,  that  no  condition  could  be  made  enforceable  by 
a  third  party;  a  rule  which  was  probably  dictated  by  fear  of 
'maintenance,'  or  stirring  up  of  lawsuits,  but  which  was  con- 
nected also  with  another  event,  of  which  a  brief  account  must 
now  be  given. 

We  have  seen,^  that  Bracton  was  familiar,  in  theory  at  least, 
with  the  estate  of  inheritance  confined  to  the  actual  issue  of 
^  the   original   tenant,    and   that   he   assumed   that   it 

was  even  possible  to  limit  a  remainder  after  it.  Such 
an  estate  seems  generally  to  have  been  gi\'en  as  a  inarita- 
(jium,  or  endowment  on  the  marriage  of  one  of  the  donor's 
children.  It  was  naturally  assumed  by  the  donor  that,  on  the 
failure  of  the  donee's  issue,  the  land  would  revert  to  the  family 
stock ;  but,  apparentl}^  led  away  by  the  idea  of  '  conditional 
gifts,'  the  King's  courts  had  come  to  hold,  in  the  early  thirteenth 
century,  that  a  gift  *to  A  and  the  heirs  of  his  body'  was  a  gift 
which,  on  the  birth  of  issue  to  A,  became  an  absolute  gift  of  an 
estate  of  full  inheritance  in  A,  to  do  what  he  liked  v;ith. 

'Y.B.  9  Hen.  VI,  Trin.  (1431)  pi.  19.  23.  721. 

»  Co.  Litt.  378a.  ■•  Plowd.  21.  ^  Ante,  v>.  S5. 


NEW  INTERESTS  IN  LAND  87 

Naturally,  such  doctrine  was  extremely  unpalatable  to  the 
great  landowners,  who  had  created  appanages  out  of  their 
.  family  estates,  and  who  saw  these  appanages  now 
finally  split  away  from  the  main  stock.  Signs  of 
their  wrath  appear  during  the  previous  period ;  ^  but  their  great 
triumph  was  not  achieved  until  1285,  when  the  first  chapter  of 
the  Statute  of  Westminster  the  Second,^  the  famous  chapter 
De  Donis  Conditionalihus,  enacted  that,  on  failure  of  the  donee's 
issue,  the  land  should  revert  to  the  donor  or  his  heirs ;  not- 
withstanding any  intervening  alienation.  The  statute,  how- 
ever, went  far  bej'ond  the  demand  of  the  donors ;  and,  perhaps 
unconsciously,  in  its  anxiety  to  justify  its  policy,  proceeded 
to  protect,  not  only  the  donors  and  their  heirs,  but  the  issue 
of  the  donee  himself,  from  unauthorized  alienation^  and  to  pro- 
vide a  special  remedy  (the  Writ  of  Formedon  in  the  Descender) 
for  this  object.  Thus  the  statute  created  a  new  kind  of  in- 
heritable estate,  differing  from  the  older  '  fee  simple,'  not  only 
in  the  fact  that  it  could  only  be  inherited  by  the  direct  lineal 
issue  of  the  original  donee,  but  in  the  fact  that  no  alienation,- 
howev'er  solemn,^  by  the  holder  for  the  time  being,  could  avail 
against  the  rights  of  the  *  issue  in  talk'  Such  an  interest,  though 
an  estate  of  inheritance,  was  manifestly  inferior,  from  the  point 
of  view  of  the  holder,  to  the  wider  '  fee  simple  ' ;  it  went  back 
on  history,  and  deprived  the  holder  of  that  right  of  free  alienation 
which,  as  we  have  seen,"*  he  had  gradually  won  against  his  lord 
and  his  heirs.  His  fee  was  taUiatum,  or  cut  down,  into  a  'fee 
tail.'  It  is  true  that,  by  somewhat  later  doctrine,  he  could,  even 
by  a  common  foefTment,  put  the  issue  in  tail  to  some  inconven- 
ience, by  depriving  them  of,  their  right  of  entry  on  his  death, 
and  compelling  them  to  resort  to  their  statutory  right  of  action 
(forniedon)  .^ 

But  this  was  probably  not  until  after,  with  the  connivance 
of  the  courts,  and  by  clever  use  of  the  doctrine  of  warranty, 
the    tenant  in  tail  had    achieved  the  far   completer  triumph 

1  Provisions  of  Oxford  of  1258,  art.  27  (S.C.  386). 

2  13  Edw.  I,  c.  1. 

'  The  statute  (s.  4)  expressly  provides  that  a  Fine  (of  which  something  later) 
shall  be  ineffectual  to  alienate  the  new  estate. 

<  Ante,  pp.  37-39. 

^  Litt.  s.  597.  To  the  layman,  the  inconvenience  might  appear  to  be  slight.  In 
fact,  it  caused  the  heir  in  tail  considerable  expense  and  delay.  He  could  not  use 
the  simple  process  of  'Ejectment,'  to  be  hereafter  explained. 


88    A   SHORT  HISTORY  OF  ENGLISH  LAW 

of  defeating  entirely  the  claims  of  lord  and  issue  alike,  by  the 
Common  process  afterwards  known  as  a  Common  Recovery. 
Recovery  q^j^g  date  usuallv  quoted  for  this  complete  defeat 
of  the  statute  De  Donis  is  1473,  the  date  of  the  celebrated  de- 
cision in  TaUarum's  Case;  ^  but  the  device  can  easily  be  traced 
back  for  nearly  a  century,-  and  is  even  suggested  by  a  case  of 
the  year  1340.^  Thus  it  would  appear,  that  the  inalienable 
inheritance,  the  ideal  of  every  feudal  aristocracy,  was  in  fact 
realized  in  England  for  little  longer  than  half  a  century.  Its 
abolition  is  the  classical  justification  of  the  somewhat  clumsy 
reforming  agency  known  as  the  '  legal  fiction.'  Of  the  nature 
of  Fines  and  Recoveries,  somewhat  will  be  said  in  the  next 
chapter. 

A  third,  and,  for  the  future,  highly  important  interest,  must 
next  be  noticed.  The  term  of  years  was  already  familiar  to 
Terms  of  Glauville,  who  gives ''  a  form  of  writ  to  recover  land 
^^"^  which  has  been   pledged  to  the  defendant   'ad    ter- 

ininum  qui  praeteriit  ' ;  and  this  will  suggest  to  us,  that  the 
early  holders  for  terms  of  years  were  creditors  who,  unable  by 
reason  of  the  laws  against  usury,  to  charge  interest  openly,  had 
bargained  to  be  allowed  to  hold  their  debtor's  land  until,  out  of 
the  rents  and  profits,  they  had  repaid  themselves  with  inter- 
est.^ 

Such  a  transaction  is  treated  by  Glanville  as  a  mere  'contract' 
or  'cause.'  It  did  not  give  the  creditor  seisin  of  the  land  which 
had  been  '  bailed '  or  pledged  to  him ;  in  all  probability  he  was 
merely  entitled  to  secure  himself  by  acting  as  the  lord's  bailift* 
or  manager  of  the  land,  in  which  capacity  rents  in  money  and 
kind  would  come  into  his  hands.  It  is  conceivable,  also,  that, 
even  in  those  early  days,  a  lord  w^ho  was  starting  oft'  on  a  Crusade 
might  think  it  safer  and  more  convenient  to  give  his  steward  a 
promise  of  a  fixed  term  of  office,  in  return  for  a  promise  of  a  ferm, 
or  fixed  annual  rent,  instead  of  an  account  of  the  actual  receipts 
and  outgoings. 

But,   by  the  time  of  Bracton,   it  becomes  obvious  that  the 

1  Y.B.  12  Edw.  IV.  fo.  19,  pi.  25. 

*  9  Ric.  II  (1385)  c.  3.  As  the  statute  alludes  to  'tenant  in  tail  after  possibility,' 
it  can  hardly  have  overlooked  the  case  of  the  ordinary  tenant  in  tail. 

3  Y.B.  (Record  Series)  14  Edw.  Ill,  104. 

*  Lib    X,  cup.  9. 

^  This  was  vif  gage,  a  more  merciful  form  than  the  morl  gage,  in  which  the  rents 
did  not  go  to  reduce  the  capital  debt. 


NEW  INTERESTS  IN  LAND  89 

creation  of  terms  of  years  is  proceeding  apace,  and  with  objects 
Bractons  other  than  providing  security  for  debts.  Bracton^ 
^'®^  treats  the   '  donee   for  term   of  years  '   as  acquiring 

property;  not,  he  is  careful  to  explain,  a  free  tenement,  but 
still,  something  a  good  deal  more  than  a  mere  pledge.  He 
cannot  deny  that  the  termor  has  possession ;  and  thereupon 
arises  a  question,  which  evidently  causes  Bracton  much  perplex- 
ity. What  about  the  lessor's  seisin?  If  you  deprive  the  lessor 
of  his  seisin,  he  will  not  be  able  to  protect  his  interests,  should 
these  be  assailed  by  a  stranger,  by  using  the  possessory  assises, 
or  even  the  Writs  of  Entry.  This  is  a  heavy  penalty ;  so  Bracton 
cannot  bring  himself  to  impose  it.  On  the  other  hand,  if  the 
lessor  has  seisin,  what  about  the  termor?  Obviously,  there 
cannot  be  two  independent  seisins  of  the  same  land.  So,  prob- 
ably as  the  result  of  Bracton's  reasoning,  the  historic  question 
was  settled ;  and  it  was  decided  that  the  interest  of  the  termor 
was  a  chattel  interest,  which  could  be  bequeathed  by  will  even 
though  it  was  an  interest  in  land,  could  be  seized  by  a  judgment 
creditor  as  part  of  tlie  debtor's  goods,  and  could  be  created  and 
transferred  by  mere  word  of  mouth  or  WTiting,  without  livery  of 
seisin. 

But  the  view  that  the  termor  had  not  a  free  tenement  left 
him  somewhat  naked  against  attack.  If,  as  became  common  in 
Seisin  and  the  later  thirteenth  century,  his  term  had  been 
Possession  created  by  a  sealed  covenant,  he  could  protect  him- 
self by  the  appropriate  Writ  of  Covenant  against  his  lord. 
But,  in  the  first  place,  such  an  action,  even  if  successful,  would 
only  entitle  the  termor  to  damages,  ^  not  to  delivery  of  the 
land  itself.  In  the  second,  if  the  disturbance  of  the  termor 
had  been  by  a  stranger,  he  (the  termor)  could  sue  neither  the 
stranger,  for  the  stranger  was  no  party  to  the  covenant,  nor 
the  lessor,  for  the  latter  had  not  interfered ;  while,  in  Bracton's 
day,  a  lease  for  years  implied  no  warranty  of  title.^  Appar- 
ently, Bracton  considered  that  the  termor  was  amply  protected 

1  Lib.  I,  cap.  9. 

» At  least,  this  was  so  in  later  days.  But  see  Statute  of  Gloucester  (6  Edw.  I 
(1278))  c.  11  ('recovery  by  Writ  of  Covenant')-  And  note  the  explicit  statement 
attributed  to  Belknap,  C.J.,  by  Bellewe,  in  his  Les  Ans  du  Roy  Richard  Le  Second 
at  p.  159,  under  the  year  1382.  The  'covenant  real,'  as  a  common  law  remedy, 
probably  died  out  with  the  improvement  in  the  remedy  by  Ejectment,  to  be  after- 
wards explained  (Post,  pp.  175-177). 

'  Lib.  II,  cap.  9,  ad  fin. 


so    A  SHORT  HISTORY  OF  ENGLISH  LAW 

by  a  special  Writjof  Qware  Ejecit  infra  Terminum;  ^  but,  for 
some  unknown  reason,  the  later  law  refused  to  allow  this  action 
to  be  brought  against  any  but  the  lessor  and  the  latter's  feoffees. 
Ultimately,  the  termor  found  salvation  in  the  Writ  of  ej actio 
firmae,  a  variety  of  that  Writ  of  Trespass,  which,  as  we  have 
seen,"  was  so  striking  a  feature  of  the  last  quarter  of  the  thir- 
teenth century,  and  which  protected,  not  merely  seisin,  but 
any  physical  possession.  It  is  true  that,  until  the  middle  of 
the  fifteenth  century,  only  damages  could  be  recovered  by  the 
Writ  of  Ejectment ;  but,  as  we  shall  later  see,  a  momentous 
step  was  then  taken,  which  made  the  term  of  years  the  best 
protected  of  all  interests  in  land.  Meanwhile,  the  Statute  of 
Gloucester^  had  enabled  the  termor  to  defeat  the  lessor  who 
was  endeavouring  to  get  rid  of  him  by  suffering  a  '  Common 
Recovery,'  by  showing  the  real  facts  ;^  and  this  statute,  which 
seems  to  have  applied  only  to  London,  was  made  general  in 
1529.^  Before  this  latter  date,  however,  the  termor  had  defi- 
nitely established  his  footing  in  the  scheme  of  tenure ;  for 
Littleton  ^  treats  him  as  a  tenant,  and  even  compels  him,  though 
wdth  evident  hesitation,  to  do  fealty  to  his  lessor ;  ^  while, 
shortly  after,  the  Covenants  Act  of  1540,^  by  making  conditions 
and  covenants  in  leases  enforceable  against  purchasers  of  the 
reversion,  must  have  added  greatly  to  the  stability  and  value  of 
terms  of  years.  But  the  curious  history  of  the  term  of  years 
remains,  to  the  present  day,  vividly  impressed  upon  its  present 
position ;  it  stands  midway  between  real  and  personal  property 
—  neither  wholly  real,  nor  wholly  chattel,  but  a  '  chattel  real.' 
The  gradual  definition  of  the  various  estates  in  land  which, 
as  we  have  seen,  took  place  in  the  thirteenth  century,  was, 
without  doubt,  responsible  also  for  the  appearance 
of  the  lg,w  of  waste.  A  man  who  has  but  a  tempo- 
rary interest  in  a  piece  of  land  cannot  be  allowed  to  treat  it  as 
if  he  were  absolute  owner.     His  natural  tendency  is  to  make 

>  Lib.  IV,  cap.  36.  The  form  of  the  writ  is  given.  Bracton,  forgetful  of  his 
former  distinction,  here  makes  the  termor  recover  his  'seisin.' 

«  Ante,  pp.  52-54.  ^  g  Edw.  I  (1278)  c.  11. 

*  The  fiction  appears  to  have  been,  that  the  title  of  the  collusive  plaintiff  was 
deemed  to  have  accrued  before  the  date  of  the  termor's  lease.  Thus,  if  the  collusive 
plaintiff  had  recovered  judgment  against  the  true  lessor,  he  could  have  ejected  the 
lessee,  and  handed  the  land  back  to  the  lessor. 

*21  Hen.  VIII,  c.  .36.  «  Ss.  58-60. 

'  S.  132.  8  32  Hen.  VIII,  c.  34. 


NEW  INTERESTS   IN  LAND  91 

the  most  of  his  brief  opportunities,  regardless  of  the  interests 

of    his    successors.     But,    equally    naturally,    these    latter    will 

seek  to  be  protected  against  unfair  treatment. 

As  a  matter  of  fact,  the  appearance  of  an  express  Law  of 

Waste  begins,  not  with  ordinary  tenants,  but  with  guardians. 

^      ..  As  we   have  seen,  ^  the  custody  of  the  infant   heir 

Guardians  »         ,  •        i  •      i    "^    i 

of  a  deceased  tenant  m  chivalry  belonged,  on  feudal 

principles,   to  his  lord,   and   was   accompanied   by   custody   of 

the  ward's  inheritance.     This  position  was  frequently  abused 

by  guardians,  who  treated  their  positions  simply  as  opportunities 

for  plunder ;    and  particularly  in  the  numerous  guardianships 

which  fell  to  the  Crown  as  supreme  lord  of  every  fief,  and  direct 

lord  of  the  tenants  in  capite.     Accordingly,  the  Great  Charter 

of  John  contains  strict  promise  of  amendment  in  this  respect ; 

the  guardian  is  to  take  from  the  land  nothing  more  than  the 

customary  issues,  and  he  is  to  maintain  the  buildings  and  other 

plenishings    of    the    estate    in    good    condition."     The    Charter 

of  1215  apparently  applied  only  to  guardians  in  chivalry;    but 

the  prohibition  against  waste  was  extended  by  the  Statute  of 

Marlborough^    to    guardians   in   socage.     The   same    statute* 

also  enacted  that  '  termors,  during  their  terms,  shall  not  make 

waste,  sale,  nor  exile,  of  houses,  woods,  or  men  ' ;   and  the  Statute 

of  Gloucester,^  enumerating  the  persons  against  whom  a  Writ 

of  Waste  will  lie,  includes  also  tenants  for  life,  whether  by  act 

of  the  parties  or  by  operation  of   law.^     The  Writ   of  Waste 

entitled  the  successful  plaintiff  to  forfeiture  of  the  place  wasted 

and  three-fold  damages ;    but,  though  a  solemn  decision  of  the 

King  in  Parliament  in  Gmvin  Butler's  Case  ^  laid  it  down,  that 

the  heir  of  the  reversioner  or  remainderman  in  whose  lifetime  the 

waste  had  been  committed  should  be  entitled  to  the  Writ  of 

Waste,  yet  there  remained  other  technicalities  which  made  the 

Writ  of  Waste  a  somewhat  imperfect  remedy,  and  its  place  was 

largely  taken  by  the  new  action  of  Trespass  on  the  Case,  to  be 

hereafter   described.^     According  to   later   law,   the  tenant   for 

years  (though  not  the  tenant  for  life)  is  responsible,  not  merely 

1  Ante,  pp.  34-35. 

*  Magna  Carta,  capp.  4,  5  (S.C.  297).     The  prohibition  was  re-enacted   by  the 
Statute  of  Westminster  the  First  (3  Edw.  I  (1275)  c.  21). 

3  52  Hen.  Ill  (1267)  c.  17.  ^  Cap.  23.  ^6  Edw.  1  (1278)  c.  5. 

*  E.g.  a  dowress,  or  a  tenant  'by  the  curtesy.' 

7  Printed  among  the  statutes  as  20  Edw.  I  (1291)  st.  II.         »  Post,  pp.  136-144. 


92    A   SHORT   HISTORY  OF  ENGLISH  LAW 

for  '  active  '  or  '  positive  '  waste,  but  for  mere  failure  to  keep 
the  premises  in  repair ;  the  thirteenth  century  statutes,  how- 
ever, afford  no  authority  for  such  a  proposition.  The  Statute 
of  ^Marlborough  also  clearly  recognizes  ^  the  right  of  the  creator 
of  the  estate  to  release  his  tenant  from  liability  for  '  waste ' ; 
and  the  '  tenant  for  life  without  impeachment  of  waste  '  became 
a  very  common  figure  in  the  books  of  later  daj's.  So  full  an 
advantage,  indeed,  did  such  persons  take  of  the  liberty  thus 
accorded  to  them,  that,  early  in  the  succeeding  period,^  they 
had  to  be  curbed  by  the  introduction  of  the  doctrine  of  equitable 
waste,  i.e.  waste  so  outrageous,  that  even  a  tenant  '  without 
impeachment  '  would  be  restrained  by  a  Court  of  Equity  from 
committing  it. 

At  the  very  beginning  of  our  present  period,  the  King's  courts 
were  faced  with  the  peculiarly  difficult  task  of  applying  the 
Incorporeal  j^ew  and  highly  popular  possessory  remedies  to  a 
ments  class  of  interests  ill  fitted  to  receive  them.     These 

were  the  'incorporeal  hereditaments'  of  later  times,  i.e.  those 
limited  and  strictly  defined  rights  over  land  which  do  not  in- 
clude possession  of  the  soil,  but  merely  the  power  to  do  certain 
definite  acts  which  the  possessor  of  the  soil  would  otherwise 
be  entitled  to  resent,  or  to  restrain  the  possessor  of  the  soil 
from  doing  something  which  he  would  otherwise,  as  a  matter 
of  common  right,  be  entitled  to  do.  Such  limited  rights  are 
especially  suitable  for  philosophic  analysis;  and  the  terms 
'jura  in  re  aliena,'  'servitudes,'  'fractional  rights,'  applied 
to  them  by  jurists,  are  useful  as  impressing  upon  students 
their  peculiar  characteristics.  Historically,  however,  they 
appear  to  have  arisen  in  an  entirely  haphazard  way ;  partly 
by  the  gradual  conversion  of  oflScial  functions  into  property 
rights  ('franchises'),  partly  by  the  change  in  the  conditions  of 
agriculture  which  was  slowly  transmuting  communal  usages 
into  individual  privileges,  partly  by  economic  restrictions,  such 
as  the  Usury  Laws,  which  compelled  people  to  resort  to  indirect 
methods,  like  rent-charges,  to  disguise  the  fact  that  they  were 
lending  money  at  interest. 

It  might  appear  natural  to  a  modern  lawyer  to  treat  such 
rights  as  choseg^gMion,  i.e.  as  personal  claims  by  one  individual 

152  Hon.   Ill   (1267)   r.  2.3   (2). 
-  8  Vane  V.  Lord  Barnard  (1716)  2  Vcrn.  738. 


NEW  INTERESTS  IN  LAND  93 

against  another.  But^o^the  men  of  the  twelfth  and  thirteenth 
Not  Choses  centuries,  such  a  course  would  have  seemed  fraught 
in  Action  ^,j^}^  danger.  Whilst  the  personal  remedies  of  that  day, 
at  any  rate  in  the  King's  courts,  were  few  and  imperfect,  the 
remedies  based  on  '  real '  or  proprietary  claims  were  rapidly 
becoming  scientific  and  effectual ;  and  the  royal  judges  did  not 
shrink  from  the  task  of  including  incorporeal  hereditaments  in 
their  scope.  Already  in  Glanville's  day,  the  Writ  of  Right, 
the  great  proprietary  action,  had  been  adapted  to  the  case  of 
servitudes  by  the  modification  known  as  the  Writ  of  Quod  Per- 
mittat.  ^  The  owner  of  woods  and  pastures  is  ordered  to  permit 
the  plaintiff  to  have  the  easements  therein  which  he  claims 
that  he  ought  to  have ;  and  the  King's  officer,  the  sheriff,  would 
even  be  ordered  to  take  upon  himself  the  task  of  measuring  the 
meadows  of  a  township,  to  see  whether  any  of  the  commoners 
■yvere  putting  in  an  undue  number  of  beasts,  and  thus  'overloading 
the  pasture.'^  But,  apparently,  in  all  these  cases,  the  strict 
question  of  title  had  to  be  tried  before  any  redress  could  be 
actually  given  ;  and,  as  we  have  seen,  ^  such  a  trial  might  involve 
long  delay. 

It   will   not,    however,    have   escaped   the   reader's   memory, 

that  the  more  speedy   remedy   of   the    'petty'  or  'possessory' 

assises  had  been  applied,  so  far  back  as  the  reign  of 

aUVOWSOIIS  J.  X  -'  •- 

Henry  II,  to  one  very  important  kind  of  interest  which 
we  now  class  as  an  'incorporeal  hereditament.'  This  was  the 
advowson,  or  right  of  presentation  to  an  ecclesiastical  benefice, 
with  regard  to  which  a  speedy  remedy  was  given  by  the  Assise 
d'arrevnj^esentment^  It  is  true  that  an  advowson  was,  by  the 
lawyers  of  the  medieval  period,  regarded  almost  as  much  as  a 
'corporeal'  as  an  'incorporeal'  hereditament.  It  could  be 
made  the  subject  of  tenure;^  though  it  could  not  be  transferred 
by  corporeal  investiture  or  livery  of  seisin/  Still,  it  obviously 
differed  from  the  ordinary  estate  of  which  the  owner  was  'seised 
in  demesne  as  of  his  fee '  (or  '  freehold ') ;  and  the  existence  of  the 
Assise  d'arrein  presentment  must  have  rendered  a  speedy  remedy 
for  disturbance  of  incorporeal  interests  desirable.     Unfortunately, 

I  Glanville,  lib.  XII,  cap.  15.  » Ibid.,  cap.  14.  '  Ante,  pp.  49-50. 

*  Glanville,   lib.   XIII,   capp.    18,    19.     It  was   also  protected   by  the   powerful 
remedy  of  the  Quare  impedit. 

*  Co.  Litt.  85a ;    Hartopp's  and  Cock's  Case  (1627)  Hutt.  88. 
*Co.  Litt.  332a,  335b. 


94    A  SHORT  HISTORY  OF   ENGLISH  LAW 

both  the  Writs  of  Entry  and  the  Writ  of  Trespass  were  obviously 
inappHcable  to  interests  which  did  not  confer  seisin  or  possession ; 
and,  though  the  highly  popular  Assise  of  Novel  Disseisin  had 
been  applied,  as  early  as  Glanville's  time,  ^  to  protect  pasturage 
rights,  the  difficulty  of  extending  it  to  other  incorporeal  here- 
ditaments seemed  to  be  insuperable.  In  the  year  1285,  however, 
the  Statute  of  Westminster  the  Second,  by  a  chapter  which 
incidental!}^  reveals  the  existence  of  many  of  our  most  familiar 
modern  'easements  and  profits,'^  extends  the  remedy  to  'estovers* 
and  other  profits  of  woods,  toll,  tronage,  passage,  pontage, 
offices,  and  commons  of  all  kinds.  The  position  of  rents  charge 
was  altogether  anomalous.  Though  they  could  not,  unlike 
rents  service,  be  distrained  for  (unless  an  express  power  of  distress 
had  been  granted),  they  could  virtually  be  treated  as  land  for 
purposes  of  litigation.  If  the  person  seised  of  the  land  (terre- 
tenant)  refused  to  pay  the  rent,,  he  could  be  regarded  as  disseising 
the  rent-charger  of  the  land  itself;  if  a  stranger  procured  pay- 
ment of  the  rent  instead  of  the  lawful  claimant,  he  could  be 
similarly  treated.^  So  closely  was  the  rent,  even  the  rent  charge, 
identified  with  the  land,  that,  in  later  days,  when  the  Assise  of 
Novel  Disseisin  had  dropped  out  of  use,  it  could  be  gravely 
argued  that  there  was  no  personal  remedy  for  the  recovery  of  a 
rent  charge.^ 

For  the  various  'easements  and  profits'  not  protected  by  the 
Assise  of  Novel  Disseisin,  a  speedy  remedy  was  soon  found  in 
the  Action  of  Case,  the  development  of  which  must,  in  its 
proper  place,  be  traced  wdth  some  care.^  Here  it  is  sufficient  to 
say,  that  the  method  of  the  Action  of  Case  was  to  take  some 
ancient  remedy,  the  value  of  which  was  impaired  by  technical 
restrictions,  and  cut  away  those  restrictions,  by  making  the 
remedy  universally  applicable  under  the  guise  of  analogy,  or 
'like  case.'  In  the  matter  of  incorporeal  hereditaments,  the 
ancient  Assise  of  Nuisance,  given  by  Glanville,^  at  first  only 
available  for  freeholders,  was,  by  means  of  the  Action  of  Case, 
rendered  generally  available  to  recover  damages  for  actual 
interference  with  the  enjoyment  of  such  rights.  And,  so  popu- 
lar did  the  Action  of  Case  become,  that  the  older  remedy  of  the 

>  Lib.  XIII,  cap.  37.  2  13  Edw.  I  (1285)  c.  25.  ^  Litt.  ss.  233-40. 

*  Thomas  v.  Sylvester  (1873)  L.  R.  8  Q.  B.  368. 

» Pout,  pp.  136-144.  «  Lib.  XIII,  capp.  35-38. 


NEW  INTERESTS   IN  LAND  95 

Assise,  even  where  it  was  available,  soon  tended  to  disappear. 
Nevertheless,  it  is  possible  that,  in  the  original  distinction  of 
remedies,  we  have  the  key  to  the  apparently  anomalous  dif- 
ference between  those  rights,  the  mere  technical  disturbance 
of  which  is  a  '  cause  of  action, '  and  those  other  rights  which  are 
only  infringed  when  actual  damage  occurs.^ 

Finally,  in  the  period  now  under  review,  we  note  the  appearance 
of  an  entirely  novel  and  modern  conception  of  interests  in 
Uses  of  land,  the  introduction  of  which  threatened  to  shake 

^^^^  to  its  foundations  the  whole  fabric  of  feudal  land  law. 

That  this  fabric  succeeded  ultimately,  in  spite  of  almost  over- 
whelming difficulties,  in  incorporating  into  itself  the  new  and 
revolutionary  features  of  the  'use,'  without  depriving  those 
features  of  their  essential  value,  is  a  striking  tribute  both  to 
the  tenacity  and  to  the  adaptability  of  the  medieval  system  of 
tenure. 

The  use  of  lands  was,  originally,  a  device  for  enjoying  the 
benefits  of  landownership  without  incurring  any  of  its  legal 
responsibilities.  As  we  have  seen,  one  of  the  fundamental 
principles  of  tenure  is,  that  the  position  (the  status  or  'estate') 
of  the  tenant  is  burdened  with  various  services  and  'incidents 
of  tenure.'^  Regarded  as  a  means  of  achieving  certain  politi- 
cal objects,  these  liabilities  were  essential.  Regarded  as  a 
condition  of  the  enjoyment  of  the  profits  of  the  land,  they 
were  mere  encumbrances,  to  be  got  rid  of  if  possible.  More- 
over, they  were  liabilities  which,  in  many  cases,  could  not 
actually  be  performed  by  certain  classes  of  persons.  Thus, 
an  infant,  a  woman,  or  a  religious  house,  could  not  in  person 
perform  military  service ;  though,  doubtless,  in  such  cases,  a 
substitute  could  be  sent.  On  the  other  hand,  a  certain  class 
of  person  was  only  too  liable  to  commit  treason  or  felony,  and 
thus  incur  a  forfeiture  of  his  estate,  or  to  run  into  debt,  and 
have  his  land  seized  by  his  creditors  under  the  new  remedy  of 
Elegit  provided  by  the  Statute  of  Westminster  the  Second.^ 
Finally,  the  desire  to  extend  to  land  that  power  of  testamen- 
tary disposition  which,  as  we  have  seen,^  had  been  acquired  for 

'  The  reader  familiar  with  modern  English  law  will  not  need  to  be  reminded  oi 
the  famous  decision  in  Colls  v.  Home  and  Colonial  Stores  [1904]  A.C.  179.  It  turned 
entirely  on  the  distinction  referred  to  in  the  text. 

*Ante,  chap.  III.  ^  13  Edw.  I  (1285)  c.  18.  *  Ante,  p.  61. 


9Q    A   SHORT  HISTORY  OF  ENGLISH  LAW 

chattels  in  the  twelfth  and  thirteenth  centuries,  grew  stronger 

with  each  generation. 

The  method  of  the  'use,'  as  distinguished  from  its  objects, 

was,  to  vest  the  seisin  of  the  land  in  some  person  who  would, 

^  ^  J  for  all  public  and  legal  purposes,  be  the  tenant  of  the 
Feoffee  and     ,        ,     ,^  ,.,,•,  ,  •  , 

Cestui  que      land,  but  to  DHid  him  by  a  solemn  promise  or  oath, 

to  permit  another  person  to  enjoy  the  benefit  (Use) 
of  the  land,  after  satisfaction  of  the  claims  of  the  State  and 
the  lord.  So  far  as  these  authorities  were  concerned,  the  only 
person  was  he  who  was  vested  with  the  seisin,  the  'feoffee  to 
uses,'  as  he  came  to  be  called.  Upon  his  death,  felony,  infancy, 
marriage,  and  the  like,  the  usual  incidents  of  tenure  arose ; 
against  him  were  made  the  claims  for  all  services,  though,  it  is 
hardly  necessary  to  say,  the  right  of  distress  gave  the  lord  a  still 
more  powerful  remedy  against  the  land  itself.  As  for  the 
beneficiary,  the  cestui  que  use,  he  was  out  of  the  picture ;  so  far 
as  the  State  and  the  lord  were  concerned. 

The  popularity  of  the  famous  device  of  the  use  of  lands  into 
England  is  said  to  be  largely  due  to  the  mendicant  friars  of 
Origin  of  the  then  new  Orders  of  St.  Dominic  and  St.  Francis, 
Uses  who,  arriving  in   this   country   in   the   first   half   of 

the  thirteenth  century,  found  themselves  hampered  by  their 
own  vows  of  poverty,  no  less  than  by  the  growing  feeling  against 
'Mortmain,'^  in  acquiring  the  provision  of  land  absolutely 
necessary  for  their  rapidly  developing  work.  Churches,  schools, 
and  hospitals  were  their  material  stock-in-trade;  and  these 
required  sites,  even  if  the  brethren  themselves  were  prepared 
to  lodge  in  poverty  and  obscurity.  But  the  device  soon  found 
imitators  with  inferior  motives.  A  statute  of  1376-  is  aimed 
at  persons  who,  having  inherited  tenements  and  borrowed 
chattels,  give  such  tenements  and  chattels  to  their  friends, 
'  by  collusion  to  have  the  profits  thereof  at  their  will,'  and  then, 
fleeing  to  sanctuary,  waste  these  profits  *  with  an  high  counte- 
nance,' in  defiance  of  their  long-suffering  creditors.  Other 
statutes  allude  to  the  practice  of  covering  defective  titles  by 
transferring  them  to  powerful  men  against  whom  the  lawful 
claimants  can  make  no  way,^  to  the  evasion  of  the  Mortmain 
rule  and  the  rule  against  alien  incumbents,   by  the  same  de- 

•  Ante.  p.  31.  « 50  &  51  Edw.  Ill,  c.  6. 

'  1  Ric.  II  (1377)  c.  9. 


NEW  INTERESTS  IN  LAND  97 

vice/  and  to  the  practice  of  alienating  lands  on  a  similar  under- 
standing, in  order  to  be  able  to  commit  waste  with  impunity.^ 

But  here  it  will  not  unnaturally  be  asked,  with  what  assur- 
ance could  the  adopters  of  this  device  expect,  from  those  to 
Protection  whom  they  had  confided  such  enormous  power, 
of  the  Use  ^j^y  better  faith  than  they  themselves  had  shown  ? 
What  was  there  to  prevent  a  feoffee  to  uses  denying  the  claim 
of  his  cestui  que  use  to  the  profits  of  the  land?  According  to 
law,  he  (the  feoffee  to  uses)  was  the  tenant,  the  owner  of  the 
estate.  What  was  to  prevent  him  taking  the  profits  for  his 
own  use,  instead  of  leaving  them  for  the  use  of  another  ? 

Probably,  in  the  earlj^  days  of  the  use  of  lands,  nothing  at  all ; 
save  the  popularity  of  the  friars,  and  the  general  scandal  which 
The  Court  a  breach  of  ecclesiastical  confidence  would  have 
of  Chancery  occasioned.  The  Church  courts,  which  would,  doubt- 
less, have  been  only  too  eager  to  interfere  for  the  protection 
of  the  cestui  que  use,  had  been  excluded  in  advance  from  en- 
forcing promises,  even  when  a  breach  of  them  amounted  to  a 
laesio  fidei;  they  were  still  more  strictly  prohibited  by  the 
royal  judges  from  holding  plea  of  lands.  But,  in  the  latter 
half  of  the  fourteenth  century,  a  powerful  champion  of  the 
cestui  que  use  arose  in  the  Court  of  Chancery ;  and,  from  the 
end  of  the  fifteenth  century^  (probably  long  before)  we  find  the 
Court  issuing  its  powerful  Writ  of  subpcena  against  the  man 
who,  having  received  land  to  hold  for  the  use  of  another,  refuses 
to  allow  that  other  to  enjoy  it.  After  this,  it  is  merely  a  ques- 
tion of  time  when  the  'equitable  ownership'  of  land  shall 
assume  the  character  of  a  definite  and  recognized  system  along- 
side of  the  older  system  of  legal  estates.  The  details  of  the 
story  are  too  long  to  be  told  here.  Suffice  it  to  say  that,  by 
gradually  assimilating  the  interest  of  the  cestui  que  use  to  that 
of  the  legal  tenant,  by  imposing,  not  merely  on  the  original 
feoffee  to  uses,  but  on  all  persons  who  acquired  his  estate  in 
circumstances  which  rendered  them  morally  bound  to  respect 
the  claims  of  the  cestui  que  use,  the  liability  to  do  so,  ^  above  all, 

•  7  Ric.  II  (1383)  c.  12 ;  15  Ric.  II  (1391)  c.  5.  (The  latter  statute  put  an  end 
to  this  particular  evasion  of  the  Mortmain  rule.) 

"^  11  Hen.  VI  (1433)  c.  5. 

'See  the  precedents  in  Select  Cases  in  Chancery,  ed.  Baildon  (S.S.  vol.  10). 

^  See  this  process  worked  out  in  detail  in  Maitland's  Equity,  pp.  117-121  ;  also 
in  the  author's  Modern  Land  Law,  at  pp.  141,  142,  where  the  decisions  are  referred 
to.     They  range  from  14S5  to  1589. 


98    A   SHORT   HISTORY  OF  ENGLISH  LAW 

by  raising  implied  or  constructive  uses  from  circumstances 
which,  in  the  opinion  of  the  Court,  rendered  the  legal  owner 
bound  in  conscience  to  act  as  a  trustee  for  the  cestui  que  use, 
the  Court  of  Chancery,  powerfully  aided  by  Parliament,^  had, 
even  before  the  passing  of  the  statute  of  1535,  in  effect  created 
a  dual  system  of  land-ownership  in  England.  Unlike  the  older 
system  or  estates,  which  was  based  on  the  conspicuous  fact  of 
seisin  of  possession  of  the  land,  the  new  system  was  based  on 
conscience,  i.e.  on  the  moral  duty  of  the  person  seised  (the 
feoffee  to  uses)  to  allow  the  beneficial  owner,  or  cestui  que  use, 
to  enjoy  the  profits  of  the  land.  This  moral  duty  was  not  rec- 
ognized by  the  older  royal  tribunals,  the  Benches  and  the  Ex- 
chequer,- which,  indeed,  with  their  jury-process,  were  ill-fitted 
for  the  decision  of  moral  questions.^  But  the  ne^w  Court  of 
Chancery,  with  its  ecclesiastical  Chancellor,  well  versed  in  the 
mysteries  of  theological  casuistry,  and  unhampered  by  the 
presence  of  a  secular  jury,  set  itself  with  eagerness  to  defend 
the  cestui  que  use  against  the  tenant  of  the  legal  estate.  Only 
where  such  tenant  had  acquired  his  estate  as  a  bond  fide  pur- 
chaser, without  knowledge  of  the  trust  affecting  it,  was  the 
Chancery  powerless  to  protect  the  equitable  ownership;  for 
in  that  case  there  was  no  '  equity '  that  could  be  set  up  against 
the  legal  tenant.  In  all  other  cases,  the  equitable  interest 
dogged  the  heels  of  the  legal  tenant  like  an  inevitable  shadow ; 
a  shadow  which,  from  the  standpoint  of  pecuniary  value,  was 
worth  more  than  the  substance  of  the  legal  estate.  Even 
Littleton,  though  he  represents  the  strictest  orthodoxy  of  the 
older  feudal  law,  was  obviously  familiar  with  the  use  of  lands; 
for  he  admits^  that  the  cestui  que  use  is  put  on  assises  and  inquests 
under  the  Jury  Act  of  1414,^  and  his  will  shows  that  he  had  lands 
of  his  own  in  '  use. ' 

But  the  peaceful  development  of  the  use  of  lands  was  threat- 

'  Soe  11  Hen.  VI  (1433)  c.  5  {cestui  que  use  liable  for  waste) ;  4  Hon.  VII  (1488) 
c.  17  (heir  of  c.q.u.  to  be  in  ward  and  pay  relief,  and  to  have  action  against  guardian)  ; 
19  Hen.  VII  (1503)  c.  15  (use  of  land  liable  to  be  taken  in  execution  on  judgment, 
&c. ;    heriots,  reliefs,  &c.  to  apply). 

«  It  is,  of  course,  well  known  that,  in  later  times,  the  Court  of  Exchequer  exercised 
equitable  jurisdiction.     But  it  was  evidently  borrowed  from  Chancery. 

3  Fitzherbert  {Natura  Brevium,  117  A)  does  indeed  state  that  the  cestui  que  use 
may  have  a  Writ  of  Account  against  the  feofTce.  But  he  gives  no  form ;  and  the 
statement  is  of  doubtful  authority.  Anyhow,  the  Writ  of  Account  was  never  a  great 
success. 

*  Ss.  462-464.  ^  2  Hen.  V,  st.  II,  c.  3. 


NEW   INTERESTS   IN   LAND  99 

ened  with  violent  interruption  in  the  first  half  of  the  sixteenth 
The  statute  centurv.  The  King's  advisers  had  in  immediate  view 
of  Uses  ^j^g  dissolution  of  the  monasteries,  and  the  confiscation 

of  their  lands.  It  was  known  that  a  vast  quantity  of  these  lands 
were  held  for  the  monasteries  under  the  convenient  protection 
of  uses,  presumabl}^  created  before  the  mortmain  statute  of 
1391.^  The  royal  advisers  were  determined  that  these  lands 
should  not  escape  forfeiture  under  the  disguise  of  mere  equitable 
interests ;  such  a  result  would  merely  have  benefited  the  feoffees 
to  uses,  whereas  the  King's  advisers  destined  the  lands  for  quite 
other  persons.  Accordingly,  the  famous  Statute  of  Uses,  passed 
at  the  close  of  the  year  1535,^  in  effect  enacts  (for  the  language  is 
unspeakably  involved  and  obscure)  that,  whenever  A  is  or  shall 
hereafter  be  'seised'  to  the  use  of  B,  of  any  interest  in  land,  B 
shall  be  deemed  to  have  a  corresponding  legal  estate;  A  dis- 
appearing altogether  from  the  scene. ^  One  of  the  popular  titles 
given  to  the  statute,  viz.  '  An  Act  for  the  Transmutation  of  Uses 
into  Possession,'  perhaps  hits,  as  clearly  as  any  brief  formula, 
the  intention  of  the  measure;  for,  though  it  was  afterwards 
held,^  that  mere  trespassory  possession  was  a  question  of  fact 
which  could  not  be  disguised,  even  by  the  words  of  a  statute, 
yet  all  that  the  recognition  of  the  legal  seisin  could  do  for  the 
cestui  que  use  would  be  done. 

The  fate  of  the  Statute  of  Uses  is  one  of  the  most  curious 
in  legal  history.  Its'  secret  and  unavowed  purpose,  of  securing 
Effects  of  the  estates  of  the  monasteries  for  the  Crown,  it 
the  statute  accomplished.  Its  ostensible  purpose,  fortified  by 
a  wealth  of  hypocritical  justification,^  it  entirely  failed  to  achieve. 
Not  only  were  devises  of  lands,  after  a  brief  interval,  put  on 
a  legal  footing ;  ^  but,  as  is  well  known,  uses  of  lands,  as  dis- 
tinguished from  legal  estates,  soon  re-appeared  in  full  vigour. 
Whilst,  in  unforeseen  directions,  the  statute  worked  havoc  in 
the  medieval  system  of  conveyancing;  and  gradually  modern- 
ized it  out  of  existence.  At  this  point  we  are  concerned  to 
notice  only  the  failure  of  its  avowed  object.     This  failure  took 

1  15  Ric.  II,  c.  5. 

2  27  Hen.  VIII,  c.  10. 

'  This  seems  to  be  a  fair  summary  of  the  long  first  section. 

*  Lutwich  V.  Milton  (1620)  Cro.  Ja.c.  604  ('not  to  have  trespass  without  entry  and 
actual  possession'). 

^  See  the  long  list  of  supposed  grievances  quoted  in  the  preamble. 
«  32  Hen.  VIII  (1540)  c.  1. 


100    A  SHORT  HISTORY  OF  ENGLISH  LAW 

the  form  of  a  discovery  that  three  important  classes  of  uses  of 
land  did  not  fall  within  the  operation  of  the  statute. 

In  all  probability,  the  framers  of  the  Act  had  never  contem- 
plated the  inclusion  within  it  of  'active  trusts'  —  i.e.  arrange- 
ments under  which  the  feoffee  to  uses  did  not  merely  lend  his 
Uses  not        name  as  a  cover  for  the  cestui  que  use,  but  genuinely 

wiihin  the      conducted  himself  as  manager  and  administrator  of  the 
statute  ,         T  1  n  1 

estate,  handmg  over  the  net  pronts  to  the  cestui  que  use. 

At  any  rate,  such  active  trusts  were  soon  treated  as  being  outside 

the  statute ;  ^    although,  owing  to  the  important  fact  that  no 

technical  words  were  ever  essential  to  the  creation  of  a  use,  it 

was  sometimes  difficult   to   discover   whether  an  'active'  or  a 

^passive'  use  or  trust  was  intended. 

Another  loophole  was  discovered  in  the  employment  of  the 
word  'seised'  by  the  framers  of  the  statute.  For,  as  we  have 
seen,  ^  the  word  '  seised, '  and  its  analogues,  had  long  been  reserved 
for  the  free  tenement ;  the  owner  of  a  term  of  j^ears  was  not 
seised.  Consequently,  an  assignment  of  a  term  of  years  to  A 
to  the  use  of  B  was  not  '  executed '  by  the  statute,  so  as  to  make 
B  legal  owner ;  though  a  feoffment  to  A  and  his  heirs  to  the  use 
of  B  for  the  same  number  of  years,  would  have  that  effect.^ 

Finally,  by  what  can  only  be  regarded  as  sheer  quibbling, 
it  was  resolved,  in  a  famous  decision  of  the  Court  of  Wards,  ^ 
that  if  the  donor  of  lands  has  placed  an  use  upon  an  use  {e.g.  has 
enfeoffed  A,  to  the  use  of  B,  to  the  use  of,  or  in  trust  for,  C), 
the  second  use  is  not  '  executed '  by  the  statute ;  for  that  '  an 
use  cannot  be  engendered  of  an  use.'  It  was  not  long  before 
the  ingenuity  of  conveyancers  saw  in  this  decision  a  simple  means 
of  evading  the  statute  in  any  case ;  and  so  we  get  the  common 
formula  of  a  conveyance  'into  and  to  the  use  of  A,'  in  trust 
for  B,  which,  as  was  said  in  a  w^ell-known  case,^  merely  added 
three  (?  five)  words  to  the  conveyance,  and,  at  the  same  time, 
entirely  excluded  the  operation  of  the  statute. 

Thus,  after  a  temporary  check,  the  development  of  the  doc- 
trine of  uses  resumed  its  full  course.  The  Court  of  Chancery, 
aided  from  time  to  time  by  Parliament,  imposed  upon  the 
interest  of  the  cestui  que  use  the  incidents  of  the  legal  estate, 

1  Xevil  V.  Saunders  (1686)   1  Vcrn.  415.  ^  ^^^g^  pp_  52,  53,  89. 

3  This  is  expressly  enacted  by  the  statute  (s.  1). 

*  Tyrrel's  Case  (1557)  Dyer,  155. 

*  Hopkins  V.  Hopkins  (1738)  1  Atk.,  at  p.  591. 


NEW  INTERESTS  IN  LAND  101 

and  vested  him  with  its  powers;    while,  on  the  other  hand,  it 

relieved   the    estate  of   the    trustee  from    the    legal    liabilities 

.  which,  owing  to  the  default  or  incapacity  of  the  trus- 

History  of     tee,  threatened  to  endanger    the   beneficial  interest, 

Trusts  '  r>  } 

though  not,  of  course,  from  the  ordinary  incidents  of 

tenure.  Thus,  by  a  series  of  steps,  the  course  of  which  will 
be  traced  in  the  history  of  the  next  period,  the  'use,  trust,  or 
confidence  of  lands,'  which  the  good  friars  of  the  thirteenth  cen- 
tury adopted  to  enable  themselves  to  reconcile  the  enjoyment  of 
property  with  their  vows  of  perpetual  poverty,  has  developed 
into  a  new  form  of  ownership  which,  to  all  but  trained  eyes, 
completely  resembles  the  older  feudal  form  of  tenure. 


CHAPTER  VIII 

RIGHTS  AND   METHODS  OF  ALIENATION 

IT  has  been  shewn,  in  a  previous  chapter/  how  that  right 
of  ahenating  property  in  land  which,  to  a  modern  student, 
seems  an  inevitable  feature  of  every  civilized  system 
of  law,  but  which  primitive  society  long  declines  to  recognize, 
had  won  substantial  victories  during  the  preceding  period. 
Just  at  the  close  of  the  thirteenth  century,  was  passed  a  famous 
statute  which  is  the  charter  of  free  alienation  in  England.  This, 
the  so-called  Quia  Emptores,  from  its  opening  words,  appears 
Quia  as  the  Statute  of  Westminster  the  Third  ;  -   and  from 

Emptores  j^^  wording  We  may  gather  that  it  was  something 
in  the  nature  of  a  diplomatic  move  in  the  struggle  between  the 
conservative  forces  which  opposed  free  alienation  and  the 
progressive  forces  which  favoured  it.  Apparently,  the  great 
feudal  landowners  had  complained  that  their  tenants  had 
'  subinfeudated '  their  lands  in  such  a  way  that  the  benefits 
of  the  overlordship  were  lost,  and  had  prayed  relief.  The  King, 
assuming  sympathy,  had,  with  the  advice  of  his  Parliament, 
and  'at  the  instance  of  the  great  men,  of  the  realm,'  enacted 
that  such  subinfeudation  should  no  longer  be  lawful ;  but,  at 
the  same  time,  that  'it  shall  be  lawful  to  every  free  man  to 
sell  at  his  own  pleasure  his  lands  and  tenements,  or  part  thereof ; 
so  nevertheless  that  the  feoffee  shall  hold  the  same  lands  or 
tenements  of  the  same  chief  lord  of  the  fee,  and  by  the  same 
services  and  customs  as  his  feoffor  held  them  before.'  Thus 
the  famous  rule,  which  has  ever  since  governed  English  convey- 
ancing, was  laid  down :  a  fee  simple  may  be  transferred,  it 
cannot  be  created,  by  a  subject.  The  statute  is  expressly 
limited^  to  estates  in  fee  simple.  It  was  not  intended  to  affect 
the  entails  just  made  inalienable  by  De  Donis;*   nor  to  prevent 

'  Ante,  pp.  36-38.  '  Cap.  3. 

*  18  Edw  I  (1290)  at.  I.  «  Ante,  pp.  86-88. 


METHODS  OF  ALIENATION  103 

the  creation  of  such  Hmited  fees  or  of  hfe  estates.  Moreover, 
according  to  a  well-known  rule  of  Constitutional  Law,  it  does 
not  bind  the  Crown,  which  can  accordingly,  and  does,  create 
fee^sTrnple  estates  at  the  present  day.  But,  so  far  as  the  right 
of  alienation  by  tenants  in  capite  of  the  Crown  was  concerned, 
that  was  tacitly  granted  by  a  statute  of  the  year  1327,^  which 
substituted  a  reasonable  fine  for  the  previous  forfeiture  incurred 
by  such  alienation.- 

Thus,  by  the  end  of  the  thirteenth  century,  slightly  later 
for  immediate  tenants  of  the  Crown,  the  right  of  alienation 
of  land  had  been  established  as  a  general  principle,  at  least 
for  free  tenants.  How  far  the  claims  of  servile  tenants  to 
similar  privileges  had  progressed  at  that  date,  it  is  difficult 
to  say.  \^Tien  copyholds  come  within  the  juris- 
diction of  the  King's  courts,  we  find  the  practice 
of  alienation  by  surrender  of  the  tenant's  interest  to  "Mb  lord 
and  the  admittance  of  his  alienee  in  his  place,  so  firmly  estab- 
lished, that  the  King's  courts  treat  it  as  part  of  the  general 
law  of  copyholds.^  The  form  of  the  process  suggests  a  com- 
promise between  seignorial  and  tenant  rights.  Nq_  doubt 
appears  to  haxa-fcven  Leen  raised  as  to  the  alienability  of  terms 
of  years,  in  spite  of  the  fact  that  contractual  rights  were,  in 
general,  long  inalienable.  But  there  were  certain  rules  about 
the  enforcement  of  conditions  of  forfeiture  which,  until  the 
passing  of  the  statute  of  1540,^  must  have  rendered  the  aliena- 
tion of  reversions  somewhat  difficult ;  and,  though  vested 
remainders  probably  fell  within  the  provisions  of  Quia  Empiores, 
it  was  long  before  the  possibility  of  alienating  contingent  estates, 
by  ordinary  conveyance  inter  vivos,  was  openly  admitted.^ 
As  has  been  before  stated,^  the  statutory  prohibition  against 
alienating  entailed  estates,  was  evaded  by  the  use  of  fictions, 
probably  before  the  end  of  the  fourteenth  century. 

1  lEdw.  Ill.st.  II,  c.  12. 

*  It  would  seem,  from  the  wording  of  the  Prcerogativd  Regis  (17  Edw.  II,  st.  II, 
c.  7)  that,  even  before  1327,  the  tenant  in  capite  was  allowed  to  alienate  a  portion 
of  his  fee ;  in  other  words,  the  matter  was  governed  by  cap.  32  of  the  charter  of 
1225  (9  Hen.  III). 

'  Coke,  Compleate  Copyholder,  s.  xx.xvi. 
——^1^2  Hen.  VIII,  c.  34. 

^  Statutory  recognition  was  not  accorded  until  1845  (8  &  9  Vic.  c.  106,  s.  6). 
As  a  matter  of  fact,  the  rule  had  long  been  relaxed  for  wills ;  and  this  fact  was 
formally  recognized  by  the  Wills  Act  of  1837  (7  Will.  IV  &  1  Vic.  c.  26,  s.  3). 

«  Ante,  pp.  37,  38. 


104    A   SHORT  HISTORY  OF  ENGLISH  LAW 

The  next  great  step  in  the  progress  of  free  alienation  was 
the  result  of  the  introduction  of  uses  of  land,  described  in  the 
Wills  of  l^st    preceding    chapter.     Though    the    older    King's 

Uses  courts,    the    Benches    and    the    Exchequer,    adhered 

sternly  to  the  rule,  that  the  legal  estate  in  lands  was  not  devisable, 
the  Court  of  Chancery  freely  recognized  the  right  of  ihe.CiLsiui 
que  use  to  dispose  of  his  equitable  interest  by  will — provided,  of 
course,  that  such  interest  was  capable  of  continuing  after  his 
death.  Accordingly,  it  was  every-day  practice  in  the  fifteenth 
and  early  sixteenth  centuries,  for  a  landowner,  who  felt  his  end 
approaching,  to  enfeoff  a  trustworthy  person  or  persons  '  to  the 
uses  of  his  will ' ;  and  those  uses  would,  after  his  death,  be 
enforced  against  his  feoffees  by  the  Court  of  Chancery.^  It  was, 
probably,  in  this  way  that  *  future  uses,'  i.e.  uses  not  to  take 
effect,  or  possibly  not  even  to  be  declared,  until  the  happening  of 
some  future  and  uncertain  event,  acquired  their  first  recognition. 
By  this  means,  undoubtedly,  our  law  gained  acquaintance  with 
those  *  executory  devises '  which  still,  on  some  points,  defy  the 
rules  of  ordinary  conveyancing.  For,  inasmuch  as  the  will  of 
uses  could  by  no  means  affect  the  seisin  of  the  land,  which  still 
remained  peacefully  vested  in  the  feoffee  to  uses,  the  Court  of 
Chancery  saw  no  harm  in  allowing  free  disposition  of  the  use 
itself.  It  is  worthy  of  notice,  too,  that  the  practice  of  surrender- 
ing to  the  uses  of  the  tenant's  will,  obviously  framed  on  the 
analogy  of  the  Chancery  model,  had  acquired  a  footing  in  copy- 
holds by  the  beginning  of  the  seventeenth  century. 

The  Statute  of  Uses  avowedly  aimed  at  putting  an  end  to 
devises  of  land,  by  converting  uses  into  legal  estates.^  But 
p.  such  a  result  was  so  repugnant  to  a  generation  which 

Statute  of       had  become  familiar  with  testamentarv  dispositions  of 

Wills  .  "^  .  .    . 

land  through  the  medium  of  uses,  that  public  opinion 
compelled  the  passing,  in  the  year  1_54P,^  of  ^-^tatutewhicli  openly 
sanctioned  the  devise  of  legal  interests ;  excepting  only,  for  the 
benefit  of  reversioners,  one  third  of  knight-service  estates. 
So  wide,  indeed,  was  the  wording  of  the  statute  of  1540,  that  it 
was  found  necessary  to  correct  it,  two  years  later,  by  an  explana- 

'  A  statutory  recognition  of  this  practice  may  be  found  in  1488  (  4  Hen.  VII,  c.  4). 
'27  Hen.  VIII   (1535)  c.   10  ('Where(as)  by  the  common  laws  of  this   realm, 
lands,  tenements,  and  hereditaments  be  not  devisable  by  testament '). 
» 32  Hen.  VIII,  c.  1. 


METHODS   OF  ALIENATION  105 

tory  statute,^  which  restricted  the  operation  of  devises  to  fee 
simple^estates.  The  restriction  was,  probably,  intended  to 
exclude  only  estates  tail ;  but  it  had  the  effect  of  shutting  out 
estates  pur  autre  vie,  which  remained,  accordingly,  undevisable 
until  the  passing  of  the  Statute  of  Frauds,^  in  the  next  period. 
On  the  other  hand,  the  explanatory  statute  of  1542  ^  withdrew 
at  least  some  of  the  restrictions  which  had  been  placed  by  the 
principal  statute  on  devises  of  estates  held  in  capife  of  the 
Crown,"*  and  expressl}^  allowed  undivided  shares  of  devisable 
estates  to  be  devised.^  This  last  provision  completed  the  policy 
of  allowing  all  co-owners  to  demand  a  'partition,'  or  breaking 
up  into  severalty  of  their  lands,  which  had  been  begun  by  the 
Partition  Act  of  1539,^  and  must  be  regarded  as  the 
climax  of  the  movement  in  favour  of  free  alienation 
brought  about  by  the  Reformation  statutes. 

On  the  other_liand7-  Parliament,  in  this  period,  clung  firmly 
to  the  rule  against  alienation  in  mortmain,  which,  as  we  have 
.  seen,^  had  begun  to  establish  itself  in  the  preceding 
period,  and  even  extended  its  scope.  A  statute 
of  the  year  1279,^  devoted  entirely  to  the  subject,  laid  it  down 
that  the  immediate  lord  should,  in  the  event  of  a  breach  of  the 
rule,  be  entitled  to  enter  the  land  and  claim  it  as  forfeited  at 
any  time  within  a  year  after  the  breach ;  if  he  failed  to  do  so 
his  right  passed  for  six  months  to  his  next  overlord,  and  so,  ulti- 
mately, to  the  Crown,  The  Statute  of  Westminster  the  Second 
introduced  two  new  writs  specially  concerned  with  enforcing 
the  rule.^  Quia  Emptores  is  careful  to  explain  ^°  that  the  recogni- 
tion of  the  free  right  of  alienation  does  not  extend  to  gifts  in 
mortmain.  The  Crown  was  not  bound  by  the  statute  of  1279. 
But  the  King  promised,  in  the  year  1299,^^  that  no  license  to 
acquire  lands  in  mortmain  should  be  granted  until  an  enquiry 
had  been  held  as  to  its  effect  upon  the  interests  of  'mesne' 
or  intervening  lords ;    and  this  promise  was  renewed  in  1306.^^ 

» 34  &  35  Hen.  VIII    (1542)  c.  5.  '  29  Car.  II  (1677)  c.  3,  s.  12. 

=  34  &  35  Hen.  VIII  (1542)  c.  5.  "  Ibid.,  ss.  5-8.  *  Ibid.,  s.  4. 

^  31  Hen.  VIII,  c.  1.     (Co-heirs  were  entitled  to  partition  by  the  older  law.) 
''Ante,  p.  31.  *  Printed  as  7  Edw.  I,  st.  II. 

'  13  Edw.  I,  c.  41.     (The  writs  are:    Contra  Formam  CoUationis  and  Cessavit  in 
Biennium.) 

»»  18  Edw.  I  (1290)  c.  3. 

"  27  Edw.  I,  St.  II.     (This  is  the  writ  of  Ad  Quod  Damnum.) 

"  34  Edw.  I,  St.  III. 


106    A  SHORT  HISTORY  OF  ENGLISH  LAW 

A  statute  of  1344^  shows  some  weakness ;  but  the  statute  of 
1391  -  is  memorable,  not  merely  as  being  the  Mortmain  Code  of 
tTiree  centuries,  but  as  extending  the  rule  of  mortmain  Xo  all 
bodies,  religious  and  secular  alike,  having  perpetual  succession. 
For  this  extension  marks  the  definite  recognition  by  English 
Law  of  the  corporation,  or,  as  it  is  sometimes  called,  the  '  fictitious 
person  '  — ■  the  legal  personality  which  is  not  restricted  to  the 
limits  of  individual  life.  The  gradual  evolution  of  this  institution 
is  one  of  the  most  fascinating  chapters  in  legal  history ;  but 
space  forbids  any  attempt  to  describe  it  here.^  The  Reformation 
statutes  still  further  strengthened  the  policy  of  mortmain  by 
declaring  void  (though  not  a  cause  of  forfeiture)  all  gifts  of  lands 
to  parish  churches,  chapels,  or  religious  gilds,^  and  by  defining 
the  scope  of  lawful  charitable  gifts.^ 

Passing  now  from  the  right  of  alienation  to  the  forays  by 
which  that  right  was  exercised,  we  find  it  everywhere  assumed, 
in  the  earlier  years  of  this  period,  that  an  alienation  of  land, 
w^hether  by  way  of  'subinfeudation'  or  'substitution,'  will  be 
Feoffments  effected  by  a  'feoffment  w^tli  livery  of  seisin,'  i.e. 
by  a  physical  transfer  of  possession.  Analytically, 
this  process  is  two-fold.  The  present  possessor  vacates  posses- 
sion, indicating  to  the  intending  acquirer  that  he  (the  purchaser) 
may  now  take  peaceful  possession  of  the  land  so  left  vacant. 
Thereupon,  the  purchaser  enters  and  takes  possession  of  the 
land.  Usually,  however,  the  process  is  effected  by  a  single 
ceremony  which  disguises  the  dual  character  of  the  transaction 
('livery  in  deed').  It  is  possible,  however,  that  a  considerable 
interval  may  elapse  between  the  retirement  of  the  transferor 
and  the  entry  of  the  transferee.  In  that  case,  until  the  latter 
event  has  taken  place,  the  delivery  of  possession  is  imperfect 
('livery  in  law^').  In  any  case,  it  is  essential  to  the  transaction 
that  the  possession  shall  be  vacant  when  the  transferee  enters; 
otherwise  his  act  is  a  disseisin,  it  may  be  a  forcible  disseisin, 
which  will  subject  him  to  criminal  punishment.^  That  is  why 
entry  must  take  place  in  the  lifetime   of  the   feoffor;^    before 

'  18  Edw.  Ill,  St.  Ill,  c.  3.  2  15  Hie.  II,  c.  5. 

'  The  reader  should  refer  to  the  account  given  in  P.  &  M.  (Vol.  II,  pp.  486-511.) 
*  23  Hen.  VIII  (1531)  c.  10.     There  was  an  exception  for  interests  not  exceeding 
twenty  years  (s.  3). 

'  43  Eliz.  (1601)  c.  4,  8.   1. 

«  Statutes  of  Forcible  Entry  (5  Ric.  II  (1381)  st.  I,  c.  8;  8  Hen.  VT  (1429)  c.  9). 

'  Co.  Litt.  48  b. 


METHODS  OF  ALIENATION  107 

the  latter's  seisin  descends  to  his  heir  in  pursuance  of  the  rule  : 
le  mort  saisit  le  vif.  During  the  whole  of  the  period  under 
review,  no  written  evidence  of  the  feoffment  was  required ; 
though,  for  convenience  of  record,  'charters  of  feoffment' 
became  common  before  the  end  of  the  fifteenth  century.  But 
the  form  of  such  documents  tells  its  own  tale.  It  is  recitative 
only,  not  operative  —  'I  have  given  and  granted,'  not,  'I  give 
and  grant.' 

Around  this  primitive  type  of  conveyance  an  almost  supersti- 
tious atmosphere  of  reverence  had  accumulated  before  the  close 
of  our  period ;  and,  in  addition  to  what  a  modern  lawyer  would 
esteem  the  proper  and  normal  effect  of  a  conveyance,  viz.,  the 
transfer  of  undisputed  rights,  the  feoffment  was  marked  by  at 
least  three  qualities  which,  to  a  modern  lawyer,  seem  grotesque. 

The  first  of  these  is  what  may  be  called  (though  the  expression 
Beneficial  is  not  orthodox)  its  '  beneficial  operation. '  Provided 
pera  ion  only  that  the  entry  of  the  feoffor  to  make  livery  be 
lawful,  the  feoffment  'cleareth  all  disseisins,  abatements,  in- 
trusions, and  other  wrongfull  or  defeasible  estates ' ;  ^  in  other 
words,  it  starts  the  feoffee  again  with  a  clear  title,  unhampered 
by  any  previous  defects  caused  by  unlawful  claims.  That  was 
one  reason  why  the  ^right  of  entry  '  was  so  jealously  guarded ; 
and  why,  therefore,  a  '  discontinuance '  by  a  tenant  in  tail, 
which,  though  it  did  not  deprive  the  heir  in  tail  of  his  estate, 
robbed  the  latter  of  his  '  right  of  entry,'  and  so  rendered  it  im- 
possible for  him  to  alienate  until  he  had  recovered  the  land  by 
action,  was  so  serious  a  step.^  The  doctrine  of  beneficial  opera- 
tion was  justified  by  the  subordinate  and  very  difficult  principle 
of  'remitter,'  i.e.  the  rule  whereby  a  man  who  has  two  titles, 
one  older  and  better,  the  other  younger  and  more  disputable, 
if  he  comes  to  the  land  by  the  latter,  will  be  deemed  by  the  law 
to  be  'in'  by  force  of  the  former.^  In  the  days  of  disturbed 
titles,  it  was  of  great  importance,  and  is  so  treated,  both  by 
Littleton  and  Coke.'* 

The  second  peculiar  quality  of  a  feoffment  is  officially  described  ^ 
as   its   'tortious  operation.'      For,   a    livery  in  deed    being  an 

'  Co.  Litt.  9a.  An  'abatement'  is  the  entry  of  a  stranger  between  the  death  of 
an  ancestor  and  the  entry  of  the  heir ;  an  '  intrusion '  a  similar  entry  between  the 
death  of  a  tenant  for  life  and  the  entry  of  the  remainderman  (Co.  Litt.  277a). 

2  See  ante,  p.  87.  s  Ljtt.  s.  659.  *  Co.  Litt.  347  b-364  b. 

'  E.g.  in  the  Real  Property  Act,  1845,  s.  4. 


108    A  SHORT  HISTORY  OF  ENGLISH   LAW 

undeniable  fact,  it  at  least  transferred  seisin  to  the  feoffee  — 
Tortious  not  necessarih^  a  rightful  seisin,  but,  if  tlie  feoffor 
Operabon  professed  to  transfer  njore  than  he  himself  had,  a 
wrongful  ^r  'torti^s'  seisin.  An3^,  iiiasinuch  as  there  could 
only  be  one  seisin  of  the  land,  it  followed  that  this  tortious  feoff- 
ment might  work  disastrous  results  to  lawful  interests.  Thus, 
for  example,  if  made  a  lessee  for  years,  it  deprived  the  lessor  of 
the  seisin  which,  as  we  have  seen,^  remained  in  him,  notwith- 
standing the  grant  of  the  term.  If  made  by  a  tenant  for  life, 
it  'devested'  the  remainders  or  reversion  on  his  estate.  In 
both  cases,  the  estates  of  the  remainderman  or  reversioner  were 
reduced  to  mere  rights  of  entry,  which,  if  exercised  at  all,  must 
have  been  exercised  promptly,  or  the  'disseisor'  would  have 
acquired  a  seisin  protected  by  the  possessory  assises,  and  the 
claims  of  the  injured  party  would  then  have  been  reduced  to 
mere  rights  of  action,  which  were  liable  to  perish  by  lapse  of 
time,  and  which  could  not  be  alienated.^  If  the  wrongful 
possessor  succeeded  in  holding  possession  until  the  death  of 
the  rightful  claimant  of  the  seisin  (the  'disseisee'),  the  latter's 
heir  was  likewise  restricted  to  a  mere  right  of  action ;  the  '  descent 
cast  tolled  the  entry.' ^  Naturally,  such  a  grievous  wrong  was 
not  committed  with  impunity ;  a  tortious  feoffment  by  a  feoffor 
who  had  no  fee  worked  a  forfeiture  of  his  estate,  and  entitled 
the  next  vested  remainderman  or  reversioner  to  enter  and  claim 
the  land  at  once.^  But  this  very  righteous  rule  itself  ultimately 
became  an  engine  of  fraud ;  for,  by  means  of  it,  tenant  for  life 
in  possession  could,  by  collusion  with  the  next  vested  remainder- 
man, cause  a  forfeiture  of  his  (the  tenant  for  life's)  estate,  and 
thus  destroy  the  intervening  contingent  remainders.  It  was  this 
device  which  led  to  the  institution  of  'trustees  to  preserve  con- 
tingent remainders '  —  necessary  parties  to  every  family  settle- 
ment, until  the  Real  Property  Act,  1845,  abolished  altogether 
the  tortious  operation  of  a  feoffment.^ 

Thirdly,  a  feoffment  might  involve  a  warranty  by  the^feoffor 

«  Ante,  p.  89. 

*  If  the  disseisor  could  hold  possession  for  three  years,  even  though  his  entry  had 
been  forcible,  he  could  not  be  turned  out  by  the  summary  remedy  given  by  the 
8  Hen.  VI  (1429)  c.  9  (see  s.  7).     Of  this  more  in  a  later  chapter. 

'  Litt.  s.  .386.  The  Note  of  Hargraves  and  Butler  appended  to  this  section  in 
their  edition  of  Coke's  Commentary  on  Littleton  gives  an  excellent  summary  of  the 
eflTects  of  disseisin. 

«Co.  Litt.  p.  251.  *  8  &  9  Vic.  c.  106,  s.  4. 


METHODS   OF  ALIENATION  109 

of  the  feoffee's  title  —  i.e.  a  liability,  in  the  event  of  the  feoffee 
losing  the  lands   by  a  claim   mconsistent  with  the 

Warranty  ^  -         -      * 

title  of  the  feoffor,  to  make  up  to  him  the  loss  out  of 
his  (the  feoffor's)  other  lands.  This  liability  is,  historically, 
of  such  importance,  that  a  few  words  must  be  devoted  to  it. 

The  feudal  warranty  is,  doubtless,  derived  from  the  ancient 
duty  of  the  feudal  lord  to  protect  his  liege  man  '  with  fire  and 
sword  against  all  deadly.'  It  was  of  the  essence  of  the  feudal 
bond,  that  the  vassal  should  be  under  his  lord's  protection. 
But,  with  the  gradual  transmutation  of  the  feudal  tie  into  a  mere 
symbol  of  property,  we  notice  a  desire  on  the  part  of  the  State 
to  restrict  the  operation  and  frequency  of  a  liability  so  dangerous 
to  social  order.  For,  even  when  the  ancient  military  protection 
had  degenerated  into  the  mere  liability  to  replace  the  lost  estate, 
the  fact  that  a  vassal  was  known  to  be  '  warranted '  by  a  powerful 
lord,  might  well  prejudice  the  just  claims  of  humble  claimants  of 
his  land. 

Accordingly,  we  are  not  surprised  to  find,  that  one  of  the 
earliest  statutes  of  the  period  under  review  proceeds  to  discuss 
the  question  of  the  liability  of  feoffors  to  warranty.  In  the  so- 
called  Statute  of  Bigamy,  passed  in  the  year  1276,^  it  is  laid 
down  that',  where  the  technical  words  '  dedi  et  concessi '  have  been  <^ 
used,  and  a  tenure  created  between  the  Teoffee^nd  the  feoffor, 
then  the  latter  and  his  lieirs  are  bound  to  warranty ;  even 
though  no  homage  is  rendered,  nor  any  express  warranty  given. 
But  where  the  feoffment  is  by  way  of  'substitution,'  i.e.  where 
the  feoffee  is  to  hold,  not  of  the  feoffor,  but  of  the  chief  lord  or  . . 
some  other  person,  then,  although  the  feoffor  will  be  bound  to 
warranty  during  his  own  life,  '  by  force  of  his  own  gift, '  yet  his 
heirs  will  not  be  bound,  without  express  words. 

Now  it  will  be  remembered  that,  fourteen  years  after  the 
passing  of  the  Statute  of  Bigamy,  the  statute  Quia  Emptores  ^ 
put  an  end  to  the  practice  of  subinfeudation  in  fee  simple ;  thus 
bringing  the  most  important  class  of  conveyances  within  the 
restricting  clause  of  the  older  statute.  In  other  words,  after 
1290,  the  ordinary  feoffment  in  fee  simple  would  not  impose 
any  warranty  upon  the  feoffor's  heirs,  because  it  created  no 

'  4  Edw.   I,  st.  Ill,  c.  6.      (The  statute  takes  its  name  from  its  5th  chapter, 
which  deals  with  a  certain  theological  prejudice  against  second  marriages.) 
*  18  Edw.  I  (1290)  c.  1.     (See  ante,  p.  102.) 


110    A   SHORT   HISTORY  OF  ENGLISH  LAW 

tenure  between  him  and  the  feoffee ;  it  would  merely,  as  a 
modern  lawyer  would  say,  impose  a  personal  liability  on  the 
feoffor  himself.  Of  course,  if  the  feoffment  were  accompanied 
by  a  charter  containing  an  express  clause  of  warranty,  the  case 
might  be  otherwise. 

But  now  the  question  has  to  be  asked  :  How  was  a  warranty  in 
fact  enforced?  And  to  this  question  only  a  general  answer  can 
be  given ;  for  the  subject  bristles  with  difficulties  and  obscu- 
rities. 

Let  us  take,  in  the  first  place,  what  may  be  called  the  'active' 
enforcement  of  a  warranty ;  i.e.  the  feoffee,  being  threatened 
Vouching  to  with  a  hostile  claim  to  the  land  by  a  third  party 
Warranty  ' vouches  to  warranty'  the  feoffor  ('warrantor') 
or  his  heir.  The  latter  is  then  summoned  by  Writ  of  Warranty, 
to  appear  in  the  proceedings  which  have  been  commenced  against 
the  feoffee,  and  make  good  his  warranty.  Four  courses  are 
open  to  the  warrantor.  He  can  either  deny  the  warranty ;  in 
which  case  he  subjects  himself  to  a  kind  of  interlocutory  lawsuit, 
possibly  ending  in  a  duel,  with  the  feoffee.^  Or  he  ma.y  take  up 
the  feoffee's  defence,  and  carry  on  the  original  action  brought 
by  the  hostile  claimant ;  thus  either  securing  the  land  to  the 
feoffee,  or,  if  the  action  goes  against  him,  replacing  the  lost  estate. 
Or,  thirdly,  he'may  admit  his  liability  at  once,  in  which  case  the 
original  plaintiff  gets  judgment  against  the  feoffee,  and  the^latter 
judgment  against  the  feoffor  for  an  equivalent  estate.  Or,_finally, 
the  feoffor  may  himself  'vouch  to  warranty'  his  feoffor;  in 
which  case  the  proceedings  turn  against  the  latter.  Naturally,  the 
original  plaintiff  would  find  this  dilatory  procedure  very  annoy- 
ing; and  the  possibility  of  numerous  warranties  was,  in  fact, 
one  of  the  great  reasons  for  the  unpopularity  of  the  old  real 
actions,  though  the  plaintiff  was,  by  the  Statute  of  Westminster 
the  First,  to  a  certain  extent  relieved  against  abuse  of  the  pro- 
cess. ^  Subject,  however,  to  this  statutory  restriction,  the  practice 
of  'vouching  to  warranty,'  already   well  known  in  Glanville's 

'  If  the  feoffee  was  sued  by  Writ  of  Right,  he  could  vouch  the  feoffor;  and  the 
main  action  was  then  suspended  until  the  side  issue  between  him  and  the  feoffor 
was  settled.  If  the  feoffee  had  been  turned  out  by  a  possessory  assise,  in  which 
a  warranty  could  not  have  been  pleaded,  he  could  have  a  separate  Writ  of  Warrantix 
Carlae  against  the  feoffor. 

*  3  Edw.  I  (127.5)  c.  40.  It  will  be  observed,  that  the  relief  given  by  the  statute 
only  applied  to  'Writs  of  Possession,'  not  to  the  Writ  of  Right.  It  was  .slightly  ex- 
tended, however,  by  the  20  Edw.  I  (1292)  st.  I,  the  so-called  Statute  of  Vouchers. 


METHODS  OF  ALIENATION  111 

time/  seems  to  have  lasted  until  the  practical  disappearance  of 
real  actions ;  and,  as  we  shall  shortly  see,  it  formed  an  essential 
part  of  the  fiction  of  the  Common  Recovery.^  Further  than 
this,  the  strict  doctrine  was,  that  the  liability  to  satisfy  the 
warranty  was  not  merely  personal,  but  extended  to  all  the  lands 
belonging  to  the  warrantor  at  the  date  when  the  warranty  was 
entered  into,  even  after  they  had  passed  into  the  hands  of  innocent 
purchasers  for  value.  So  that,  not  merely  the  original  warrantor 
and  his  heirs,  but  all  purchasers  from  him,  could  be  '  vouched  to 
warranty, ' 

In  early  times,  when  ancestral  liabilities  were  regarded  as 
indelible,  and  the  possibility  that  an  heir  might  be  called  upon  to 
undertake  inherited  responsibilities  irrespective  of  inherited 
assets,  was  treated  as  natural,  this  extreme  operation  of  the 
doctrine  of  warranty  might  be  tolerated.  But,  with  the  change 
in  the  law  of  inheritance  which,  as  we  have  seeu,^  took  place  in  the 
twelfth  and  thirteenth  centuries,  and  especially  after  the  sepa- 
ration between-lhalieiT  and  the  executor,  we  notice  a  distinct 
modification  of  the  liability  on  warranty.  Briefly  _put,  the 
change  was  from  active  to  passive  liability.  The 
heir  of  the  feoffor  was  no  longer  liable  to  replace 
the  estate  conveyed  by  his  ancestor ;  but  he  was  '  barred, '  or, 
as  a  modern  lawyer  would  say,  '  estopped, '  ^  at  any  rate  in 
certain  cases,  from  claiming,  through  his  ancestor,  the  estate 
which  that  ancestor  had  conveyed  'with  warranty.'  In  all 
probability,  this  liability  had  a  good  deal  to  do  with  breaking 
down  the  ancient  retrait  lignager,  i.e.  the  right  of  the  heir  to 
set  aside  his  ancestor's  alienation;^  probably,  also,  it  was  the 
origin  of  the  rule  that,  even  after  the  introduction  of  the  exec- 
utor, the  heir  was  liable  (at  least  to  the  extent  of  assets)  for 
specialty  debts  in  which  he  was  expressly  bound.  But,  at  the 
very  beginning  of  our  period,  we  find  the  doctrine  of  'bar' 
further  cut  down  by  a  famous  distinction.  If  the  right  to  the 
estate  claimed  descended  to  the  heir  from  the  same  ancestor,  and 
by  the  same  course,  as  the  liability  to  warranty,  then  the  liabil- 
ity was  a  bar  to  the  claim  to  the  estate,  assets  or  no  assets; 

'  See  lib.  Ill  of  Glanville's  work.  «  Post,  pp.  113,  114.         '  Ante,  pp.  64-65. 

*  The  technical  difference  between  a  bar  by  warranty  and  an  estoppel  is  pointed 
out  by  Coke  (Co.  Litt.  365b). 

*  Ante,  p.  36. 


112    A  SHORT  HISTORY  OF  ENGLISH  LAW 

for  this  is  'lineal  warranty.'  If,  on  the  other  hand,  the  liability 
to  warranty  came  to  the  heir  from  an  ancestor  different  from  him 
from  whom  he  inherited  the  estate,  then  the  heir.^  wilL.  only 
be  bound  to  the  extent  of  the  assets  he  had  received  from  the 
ancestor  who  ^mposed  on  him  the  liability  to  warrant;  for  this 
is  'collateral  warranty.'  Thus,  if  A,  tenant  in  fee  simple, 
enfeoffs  B  with  warranty  and  dies,  A's  heir  is  bound  by  the 
warranty,  and  cannot  claim  the  estate  against  B ;  even  though 
he  has  received  no  assets  from  A.  But  if  A  is  merely  tenant 
by  the  curtesy  of  his  (A's)  wife's  estate,  and  enfeoffs  B  with 
warranty,  then,  though  A's  heir  probably  inherits  the  estate  and 
the  warranty,  he  will  not  be  barred  from  claiming  the  estate, 
unless,  and  to  the  extent  to  which,  he  has  inherited  land  from 
A.  For  the  warranty  descended  on  him  from  his  father;  while 
the  estate  came  to  him  from  his  mother.  This  is  the  very 
case  put  by  the  Statute  of  Gloucester  ;^  but  it  seems  to  have  been 
quickh'  generalized  into  a  principle.  And  thus  we  get  the  fa- 
mous rule :  '  lineal  warranty  without  assets  is  a  bar ;  collateral 
warranty  without  assets  is  no  bar.'  The  passing  of  the  Statute 
De  Bonis  ^  caused  some  little  difficulty ;  for  the  statute  made 
no  express  provision  against  lineal  warranty.  But  by  the 
time  of  Littleton,^  it  was  admitted  that  even  lineal  warranty 
did  not  bind  the  heir  in  tail,  except  to  the  extent  of  assets  re- 
ceived from  the  warrantor.^  A  warranty  by  a  tenant  for  life  or 
years  did  not  usually  bind  the  heirs  of  the  feoffor,  because  such 
warranty  '  commenced  by  disseisin ' ;  ^  for  a  tenant  for  life  or 
years  could  not  convey-  a  lawful  fee.  It  might,  however,  con- 
ceivably have  that  effect ;  until  such  warranties  were  wholly 
abolished  by  statute,  in  the  next  period.^ 

The  subject  of  warranties  brings  us  naturally,  though  with 
some  possible  violation  of  strict  chronological  order,  to  the  form 
Common        of  conveyance  known  as  a  Common  Pa-covery.     This 

Recoveries      ,  •       •■  •    •  •  <         i  •         j.'  •  „        „ 

was,  ni  its  origni,  a  genunie  real  action,  i.e.  an 
action  to  recover  seisin ;  but,  in  its  application  as  a  form  of 
conveyance,  was  a   collusive  proceeding  between  the   parties, 

>6  Edw.  I  (1278)  c.  3.  ^S.  708. 

M.3  Edw.  I  (128.5)  c.  1.  <  Litt.  ss.  711-712. 

'  Ihid.,  s.  698.  Where  such  warranty  did  not  'commence  by  disseisin,'  e.g.  in  the 
cases  of  tenant  by  the  curtesy  or  in  dower,  who  were  lawfully  seized,  the  effect  of  the 
warranty  was,  as  has  been  said,  nullified  by  statute  (6  Edw.  I  (1278)  c.  3  (curtesy) ; 
II  Hen.  VII  (1494)  c.  20  (dower)). 

»4  &  5  Anne  (1705)  c.  3,  s.  16. 


METHODS  OF  ALIENATION  113 

entered  into  forthie  purpose  of  barring  the  lawful  claims  of 
strangers!^  We"have  seen  already^  that  use  was  made  of  it  to 
defeat  the  rights  of  lessees  for  years ;  and  from  the  statute 
which  gave  protection  to  the  lessee,  we  infer  that  the  collusive 
recovery  had  been  used  also  to  defeat  the  claims  of  dowresses, 
tenants  by  the  curtesy,  reversioners,  and  heirs.  In  other  words, 
any  person  being  actually  seised  of  land  could,  by  'making  de- 
fault' in  any  'real'  action  brought  against  him  by  a  collusive 
plaintiff,  practically  defeat  all  claims  which  had  arisen  since 
the  date  at  which  the  collusive  plaintiff's  fictitious  title  was 
supposed  to  have  accrued. 

The  Statute  of  Westminster  the  Second  appeared,^  by  allow- 
ing any  person  injured  by  a  collusive  action  of  this  kind,  to 
'falsify'  or  show  the  fraudulent  character  of  the  proceedings, 
to  have  put  an  end  to  the  practice.  But,  as  was  natural,  the 
statute  did  not  expressly  safeguard  the  rights  of  contingent 
remaindermen  and  donees  of  powers ;  for  such  interests  were 
not,  at  the  time  of  its  passing,  yet  invented.  It  is,  however,  a 
little  surprising,  that  it  did  not  expressly  safeguard  from  de- 
struction by  such  means  the  interest  of  the  issue  and  remainder- 
man in  and  after  the  new  estate  tail  introduced  by  the  statute 
itself.  This  omission  led  directly  to  the  most  famous  applica- 
tion of  the  fictitiQiia_mal  action_as  % '  common^ssuranoe^ 

For,  although  it  would  have  been  too  bold  for  the  courts  to 
have  allowed  the  tenant  in  tail  to  'bar'  or  destroy  the  rights 
As  Bar  of  of  the  issue  in  tail  and  remaindermen  or  reversioner, 
EntaU  ^y  ^jjg  simple  process  of  making  default  in  a  collusive 

action  brought  against  him  by  a  stranger  who  claimed  to  be 
seised  in  fee  simple,  by  a  title  older  than  the  date  of  the  creation 
of  the  fee  tail,  yet,  under  the  disguise  of  a  recompense  in  warranty, 
this  was  just  what  the  courts,  probably  before  the  end  of  the 
fourteenth  century,^  permitted  him  to  do.  The  tenant  in  tail 
did  not  himself  defend  the  action ;  before  it  commenced,  he 
created  a  'tenant  to  the  praecipe,'  i.e.  a  defendant  to  the  action, 
by  transferring  the  seisin  with  warranty  to  a  collusive  nominee. 
Upon  being  sued,  the  nominal  defendant  'vouched  to  warranty' 
the  tenant  in  tail,  who  himself  vouched  to  warranty  another 

1  Ante,  p.  90.  2  13  g^w.  I  (1285)  cc.  3.  4. 

'  The  reasona  which  have  led  Sir  Howard  Elphinstone  to  this  conclusion  will  be 
found  in  his  article  in  L.Q.R.  VI,  280. 


Hi    A  SHORT  HISTORY   OF  ENGLISH   LAW 

collusive  person,  and  he  again,  it  may  be,  others ;  until  at  last 
some  'man  of  straw, '  usually  a  petty  court  official,  was  vouched, 
and  the  process  of  vouching  ceased.  But  then  the  collusive 
plaintiff  'craved  leave  to  imparl,'  or  talk  matters  over,  with 
the  'common  vouchee';  and,  on  leave  being  granted  by  the 
court,  the  two  withdraw  for  the  imaginary  conference.  In  due 
course,  the  collusive  plaintiff  re-appeared ;  but  the  common 
vouchee  made  default.  Whereupon  the  judgment  of  the  court 
was  given  in  favour  of  the  collusive  plaintiff  against  the  common 
vouchee,  who  was  condemned,  in  pursuance  of  his  imaginary 
warranty,  to  recompense  the  issue  in  tail  and  the  other  parties 
under  the  settlement,  with  lands  of  equivalent  value.  Needless 
to  say,  the  latter  part  of  the  judgment  was  purely  illusory ; 
but  the  earlier  gave  to  the  collusive  plaintiff  a  title  to  the  land, 
guaranteed  by  the  judgment  of  the  court.  If  the  plaintiff  were 
intending  to  purchase  the  land,  he  thus  acquired  an  exceptionally 
good  title ;  if  he  were  merely  acting  to  oblige  the  tenant  in  tail, 
he  re-conveyed  to  the  latter,  as  soon  as  possible,  an  estate  in  fee 
simple,  clear  of  the  claims  of  the  issue  in  tail  and  remainder- 
men. 

Revived  for  the  purpose  of  barring  entails,  the  Common 
Recovery  was  also  applied  to  defeat  other  interests  not  ex- 
other  pressly  protected  b}'  statute,  e.g.  contingent  re- 
Purposes  mainders  and  executory  interests,  and  powers  appen- 
dant or  in  gross. ^  This  effect  seems  to  have  been  produced,  at 
least  in  the  case  of  a  tenant  for  life,  by  the  doctrine  that  the 
suffering  of  a  Common  Recovery  Avorked  a  forfeiture,  in  the 
same  manner  as  a  feoffment  in  fee.-  The  process  was  also  fre- 
quently used  to  bar  claims  to  dower;  but  only  with  the  con- 
sent of  the  dowress,  whose  rights  had  been,  as  we  have  seen, 
expressly  protected  by  statute.^  Statutory  restrictions  pre- 
vented its  operation  against  Crown  reversions;'*  and  threw 
some  doubt  upon  its  efficacy  when  employed  by  a  tenant  for 
life.^  A  statute  of  the  year  1540  also  expressly  made  it  void, 
at  least  so  far  as  a  bar  of  the  entail  was  concerned,  in  the  hands 

^Plunkel  V.  Holmes  (1661)  1  Lev.  11 ;    King  v.  Melling  (1673)  2  Lev.  58. 
*Sir  W.  Pelham's  Case  (1590)   1  Rep.  8. 
^  Ante,  p.  113;    Bare  v.  Snow  (1578)  Plowd.,  at  p.  515. 

♦34  &  35  Hen.  VIII   (1542)  c.  20.     In  such  cases  the  Conirmii  Recovery  did 
not  even  bar  the  heirs  in  tail  (ss.  2,  3). 
»  14  Eliz.  (1572)  c.  8. 


METHODS   OF  ALIENATION  115 

of  a  'tenant  after  possibility,'  i.e.  a  tenant  in  tail  under  a  limita- 
tion which  cannot  continue  after  his  death. ^ 

The  Fine  is  a  still  older  form  of  fictitious  lawsuit  employed 
as  a   '  common    iiSiiuciiuce ' :    and    may,   conceivably, 

Fines  —   — — — ""^ —  *^ 

be  traced  back  in  origin  to  the  'shire  witness'  of 
pre-Conquest  times.  As  a  process  in  the  royal  courts,  it  is 
certainly  as  old  as  the  twelfth  century ;  and  records  of  Fines 
in  the  Court  of  Our  Lord  the  King  are  extant  from  the  year 
1179.  In  the  year  1195,  an  important  official  regulation  with 
regard  to  their  formalities  was  issued ;  and  from  that  day  until 
their  abolition  by  statute  in  1833,  the  records  of  Fines  are  com- 
plete. 

Unlike  the  Common  Recovery,  the  Fine  waSi_in„foxm,  a  per- 
sonal action  ;  though  it  '  savoured  of  the  realty. '  It  was  usually 
commenced  by  a  Writ  of  Covenant  (Quod  ei  teneat  conventionem) 
founded  on  a  real  or  imaginary  contract  under  seal  to  do  the 
act  which  was  the  object  of  the  intended  conveyance.  In  later 
days,  the  intending  alienor  actually  covenanted  to  levy  a  Fine  to 
the  specified  uses.  The  intending  alienee,  or  'conusee'  (as  he 
was  later  known)  was  the  plaintiff  in  the  fictitious  action,  which, 
instead  of  being  carried  through  all  its  stages  (as  was  the  Common 
Recovery),  was  speedily  compromised,  with  the  permission 
of  the  Court,  on  the  terms  arranged  between  the  parties  (the 
'concord'),  which  were  then  embodied  in  the  judgment  of 
the  Court,  and  entered  on  the  record.^  Thus  the  alienee  secured, 
not  merely  unimpeachable  evidence  of  his  title,  but  judicial 
authority  for  its  validity.  The  form  which  the  proceedings 
assumed  at  the  end  of  the  thirteenth  century  is  described,  prob- 
ably with  accuracy,  in  a  document  known  as  Modus  Levandi 
Fines,  which  is  printed  among  the  Statutes  of  the  Realm.^ 

The  Fine  was  a  much  more  flexible  instrument  than  the  Com- 
mon Recovery.  The  latter,  being  a  'real'  action,  could  only  be 
Advantages  employed  by,  or  with  the  concurrence  of,  the  person 
of  a  Fine  actually  seised  of  the  land ;  because  he  alone  could 
defend  the  action.     Consequently,  it  was  unsuitable  for  the  trans- 

1  32  Hen.  VIII,  c.  31.  The  familiar  example  is,  when  land  has  been  given  to  'A 
and  the  heirs  of  his  body  by  his  wife  B.'  B  dies  leaving  no  issue,  or  only  issue  who 
die  in  A's  lifetime  without  issue.  A  is  then  said  to  be  'tenant  in  tail  after  possi- 
bility of  issue  extinct ; '  because  no  issue  of  A  and  B  can  now  possibly  exist. 

2  These  terms  frequently  included  a  'warranty'  of  title  by  the  conusor;  which 
seems  inconsistent  with  the  fiction  that  the  concord  is  the  judgment  of  the  Court. 

^  As  18  Edw.  I  (1290). 


116    A  SHORT  HISTORY  OF  ENGLISH  LAW 

f er  or  release  of  '  mere  rights, '  such  as  reversions,  rights  of  dower, 
claims  of  easements,  and  the  like.  Moreover,  in  practice,  it 
was  only  used  to  pass  an  estate  in  fee  simple ;  because  it  was 
difficult,  in  a  judgment  in  a  real  action,  to  make  any  more  elab- 
orate limitations.  The  Fine  suffered  from  no  such  restric- 
tions ;  and,  as  a  fact,  was  as  often  used  to  effect  an  elaborate 
settlement  {sur  don,  grant,  et  render)  as  to  convey  an  absolute,  or 
at  any  rate  a  simple  interest^  (come  ceo  qu'il  a  de  son  don)  or 
release  a  right  (droit  tantum)?  Moreover,  the  process  gave 
an  opportunity  for  the  'separate  examination'  of  a  married 
woman ;  and  was  thus  specially  suited  for  binding  her  interests.  ^ 
Not  unnaturally,  these  fictitious  conveyances,  and  especially 
the  Fine,  were  open  to  abuses.     There  was  not  so  much  danger 

_  ,        J      in  the  case  of  the  Common  Recovery:    on  account 
Safeguards  ,  . 

of  the  rule  which  made  the  person  actually  seised 
of  the  land  a  necessary  party.  But,  as  we  have  seen,^  even  in 
the  case  of  a  Common  Recovery,  it  was  necessary  to  provide, 
in  certain  events,  for  the  'falsification'  by  a  party  interested. 
The  danger  with  Fines  was  much  greater ;  for  what  was  to  pre- 
vent any  pair  of  enterprising  strangers  arranging  that  one 
should  convey  to  the  other  by  Fine  an  interest  in  the  land  of 
a  third  party?  The  Court  would  pass  the  transaction  as  of 
course,  on  payment  of  the  fees ;  and  the  number  and  value  of 
these  rendered  every  official  of  the  Court  anxious  to  facilitate 
the  levying  of  Fines.  Then  the  conusee  would  appear  to  have 
an  indefeasible  title  by  record  to  an  estate  to  which  he  had  not, 
in  truth,  the  remotest  claim. 

So  obvious  was  this  danger,  that  certain  pleas  appear  to 
have  early  been  allowed  when  a  title  depending  on  a  Fine  was 
set  up  in  a  law  court.  Thus  the  party  sought  to  be  ousted  could 
plead  that  the  conusor  of  the, Fine  nil  habuit  in  tenementis, 
when  he  levied  it;^  or  that  he  (the  defendant),  and  his  ances- 
tors, semper  fuervMjeisiti  of  the  land,  from  a  date  prior  to 
the  levy  of  the  Fine.  Again,  it  was  expressly  provided  by 
statute,  that  Fines  levied  by  certain  persons,  such  as  husbands 

'  Hunt  V.  Bourne  (1703)  1  Salk.,  at  p.  340. 

'  See  the  differences  explained  by  Blackstone,  Comm.  II,  pp.  352-3,  and  forms 
in  Appendix  IV.  There  was  a  fourth  form  (sur  concessit)  which  did  not  acknowledge 
the  justice  of  the  fictitious  claim,  but,  for  the  sake  of  peace,  conveyed  the  estate. 

'.Statute  of  Gloucester  (6  Edw.  I  (1278)  c.  3).  *  Ante,  p.  90. 

'  This  plea  was  expressly  preserved  by  the  statute  of  1487  (4  Hen.  VII,  c.  24). 


METHODS  OF   ALIENATION  117 

holding  their  wives'  lands  by  'curtesy,'^  and  tenants  in  tail,^ 
should  not  be  effective  to  bar  the  rights  of  other  persons.  More- 
over, it  seems  to  have  been  a  rule  of  the  Common  Law  (probably 
dating  back  to  the  old  'court  days'  of  the  popular  moots),  that 
the  so-called  'preclusive'  effect  of  a  Fine  should  not  begin  till 
a  year  and  a  day  after  the  levy ;  ^  and,  even  then,  could  be 
staved  off  by  regular  protest  or  'continual  claim. '^  But  the 
best  protection  was,  probably,  afforded  by  the  practice  of  'pro- 
clamations.' 

This  practice  seems  to  have  begun  with  the  statute  of  1299' 
{De  Finihus  Levatis),^  which  must  not  be  confused  with  the 
Prociama-     Modus    LevaiuU  Fines,    before   alluded   to.     By   the 
°°^  statute  of  1299,  the  plea  of  seviper  fuerunt  seisiti  was 

abolished,  or  at  least  restricted ;  but  it  was  enacted  that  Notes 
and  ( ?  of)  Fines  levied  in  the  King's  Court,  should  be  read  openly 
and  solemnly,  two  days  in  the  weeks,  at  the  discretion  of  the 
Justices;  all  pleas  ceasing  for  the  purpose.  Apparently,  these 
proclamations  only  bound  'parties  and  privies,'  i.e.  persons 
related  in  blood  to  the  persons  levying  the  Fine.^  But  a  later 
statute  of  1483^  (repealed  but  substantially  re-enacted  by 
another  of  1487),^  increased  the  number  of  the  proclamations,^ 
and  provided  that  any  one,  privy  or  stranger,  who  did  not,  by 
action  or  lawful  entry,  dispute  the  Fine  within  the  next  five 
years,  or,  in  the  case  of  infancy,  coverture,  or  other  disability, 
within  five  years  after  the  cesser  of  the  disability,  should  be 
for  ever  bound,  or  'concluded'  by  the  Fine.  But  the  greatest 
increase  in  the  popularity  of  Fines  occurred,  when  a  statute  of 
1540,^°  reversing  the  policy  of  De  Bonis, ^^  enacted  that  a  Fine 
levied  by  a  tenant  in  tail,  with  proclamations  under  the  statute 

'  6  Edw.  I  (1278)  c.  3 ;   32  Hen.  VIII  (1540)  c.  28,  s.  6. 

2  13  Edw.  I  (1285)  c.  1  (De  Bonis). 

^Modus  Levandi  Fines  (18  Edw.  I,  1290)  ad  fin.  i 

*  The  actual  necessity  for  repeated  claim  seems  to  have  been  abolished  by 
statute  in  1360  (34  Edw.  Ill,  c.  16). 

6  27  Edw.  I,  c.  1. 

^  This  view  seems  inconsistent  with  the  express  language  of  Modus  Levandi 
Fines ;  but  it  is  difficult  to  explain  otherwise  the  necessity  for  the  statutes  of  1483 
and  1488. 

^  1  Ric.  Ill,  c.  7.  84  Hen.  VII,  c.  24. 

^  The  Act  of  Richard  had  provided  for  proclamations  at  Quarter  Sessions  as  well 
as  in  the  Common  Pleas.  But  this  provision  was  not  adopted  by  the  statute  of 
1487.  The  details  of  these  proclamations  were  subsequently  modified  by  statute  (23 
Eliz.  (1581)  c.  3,  s.  7;    31  Eliz.  (1589)  c.  2). 

10  32  Hen.  VIII,  c.  36.  "  13  Edw.  I,  c.  1,  ad  fin. 


118    A  SHORT  HISTORY  OF  ENGLISH  LAW 

of  1487,  should  bind  the  issue  in  tail.  Thus  a  Fine  became  an 
alternative  means  of  barring  an  entail ;  and  it  had  this  ad- 
vantage over  a  Common  Recovery,  that  it  could  be  levied  b}'  a 
tenant  in  tail  in  remainder,  because  a  Fine,  not  being  a  'real'' 
action,  did  not  require  the  concurrence  of  the  person  seised  of 
the  land.  On  the  other  hand,  it  did  not  bar  the  estates  in 
remainder  after  the  estate  tail ;  for  the  words  of  the  statute  of 
1540  only  extended  to  persons  claiming  '  by  force  of  any  such 
entail.'  Lastly,  it  may  be  remarked,  that  it  was  found  necessary 
to  enact  expressly  that  neither  a  Common  Recovery  nor  a  Fine 
should  enable  a  widow  to  convert  her  dower  estate  into  a  fee 
simple.^  P 

The  tenacity  with  which  the  Common  Law  clung  to  the 
principle  that  only  b\'  transfer  of  seisin  could  an  estate,  or 
corporeal  hereditament,  in  land  be  alienated,  is  shown  by  the 
fact  that  even  a  Common  Recovery  and  a  Fine  required,  to 
complete  their  effect,  a  Writ  of  Seisin,  directed  to  the  sheriff, 
bidding  him  put  the  recoveree  or  conusee  into  actual. possession 
of  the  land.^  But,  as  we  have  seen,^  the  Common  Law  had, 
from  the  very  beginning  of  our  period,  recognized  certain  in- 
terests, such  as  reversions,  remainders,  and  'hereditaments . 
purely  incorporeal,'  which  did  not  admit  of  seisin ;  and, 
though  these  could,  no  doubt,  often  be  created  or  transferred 
by  Fine,  still  it  would  have  been  oppressive  to  have  compelled  a 
resort  to  that  costly  process  for  every  simple  case. 

Accordingly,  we  find  it  well  established  by  the  time  of  Little-^ 
ton,  that  any  interest  in  land  which  does  not  confer  seisin  may 
be  created  and  transferred  by  simple  deed,  or  writing 
under  seal,'*  apparently  without  any  notarial  or 
other  public  sanction.  Thus,  true  reversions,  remainders, 
rents,  advowsons,  easements,  and  profits^  'lay  in  grant' — i.e. 
could  be  created  or  transferred  by  deed.  There  was  some  doubt 
as  to  the  so-called  reversion  on  a  term  of  years.  For,  it  will  be 
remembered,^  no  term  of  years  confers  seisin ;  and,  therefore, 
the  reversioner  remains  seised  of  the  land.     Yet,  in   fact,  the 

'  11  Hen.  VII  (1495)  c.  20;   32  Hen.  VIII  (1540)  c.  36,  s.  2. 

'  After  the  passing  of  the  Statute  of  Uses,  this  writ  became  unnecessary,  if  the 
vendor  were  seised  at  the  time  when  the  proceedings  commenced,  and  the  Recovery 
were  suffered  or  the  Fine  levied,  to  uses.  But  Cruise  (II,  134)  seems  to  deny  this  as 
to  Recoveries. 

^  Ante,  pp.  83-86;    92-95.  ■•  Litt.  s.  1;    Co.  Litt.  9a. 

'  Litt.  83.  627-628.  «  Ante,  p.  89. 


METHODS  OF  ALIENATION  119 

termor  is  probably  in  possession;  and,  therefore,  feoffment, 
which  impHes  vacant  possession,  is  hardly  appropriate.  In  the 
end,  it  seems  to  have  been  settled,  that  either  feoffment  (with 
the  tenant's  consent),  or  Fine  (where  the  process  of  the  Court 
had  to  b6  invoked  to  compel  the  tenant  to  attorn),  was  appro- 
priate ;  while  merely  the  services  of  the  tenant,  as  distinct 
from  the  lordship,  could  be  transferred  by  deed  of  grant. ^  It 
must  be  remembered,  that  for  the  creation  and  transfer  of  terms 
of  years  themselves,  no  deed,  or  even  writing,  was  required 
before  1677;^  whilst,  on  the  assumption  by  the  Common  Law 
Surrender  Courts,  towards  the  end  of  the  fifteenth  century,  of 
and  jurisdiction  in  copyholds,  the  King's  judges  found  the 

system  of  conveying  these  interests  by  surrender  and  ad- 
mittance duly  recorded  on  the  manorial  rolls,  fully  established. 
This  process,  being  thoroughly  in  accordance  with  feudal  prin- 
ciples, they  did  not  seek  to  change ;  on  the  contrary,  they 
enforced  it  by  Writs  -of  Mandamus  directed  to_  manorial  lords. 
But  the  passing  of  the  Statute  of  Uses^  rapidly  disintegrated 
the  strict  feudal  theory  of  transfer.  It  will  be  remembered,  that 
the  ostensible  object  of  this  statute  was  to  get  rid  of  the  alleged 
evils  attendant  upon  the  practice  of  creating  'uses,'  or  beneficial 
interests  in  land.  Inasmuch  as  these  interests  did  not  confer 
seisin,  and  were  recognized  only  by  the  Court  of  Chancery, 
there  seem  to  have  been  no  rules  of  form  as  to  their  creation 
and  transfer.  Originally,  they  were  created  by  way  of  supple- 
ment to  feoft'ments ;  and  it  might  have  been  in  the  highest 
degree  inconvenient  to  record  their  nature  in  writing.  Secrecy 
was  of  the  essence  of  the  transaction.  Later  on,  the  feoffment 
was  seen  to  be  unnecessary ;  if  the  donor^^coyenanted  to  stand 
seised  to  the  use  of '  the  donee,  that  was  quite  sufficient  for  the 
Court  of  Chancery,  which  could  as  well  make  the  donor  and  his 
heir,  as  any  third  party,  a  trustee.  In  this  last  case,  no  doubt, 
the  uses  were  expressed  in  the  deed ;  but  the  Court  of  Chancery 
would  equally  hold  that  if  A  had  'bargained  and  sold,'  or 
agreed  to  sell,  land  to  B,  and  B  had  paid  the  purchase  money 
to  A,  A  was  seised  'to  the  use  of  B.  And,  in  such  a  case, 
there  need  have  been  no  writing  at  all  before  1535. 

1  Bracton,  fo.  82 ;    Co.  Litt.  48b,  49a. 

2  29  Car.  II,  c.  3  (Statute  of  Frauds),  as.  1-3. 
»  27  Hen.  VIII  (1535)  c.  10,  S3.  1-3. 


120    A   SHORT  HISTORY   OF  ENGLISH  LAW 

But  it  was  not  only  in  matters  of  evidence  that  the  Court 
of  Chancer^;_was,  according  to  Common  Law  principles,  deplor- 
g  J..    .  ably   lax.     That    Court   would   enforce    all   kinds   of 

and  Shifting  'future'  or  'executory'  uses,  quite  inconsistent  with 
Common  Law  theories  about  remainders.  Thus,  a  man 
might  be  seised  of  land  to  the  use  of  A's  unborn  children,  with- 
out any  prior  use.  Such  a  'springing'  use  would  have  been 
impossible  as  a  Common  Law  estate ;  for  it  made  no  provision 
for  the  seisin  before  the  birth  of  the  children.  Again,  a  man 
might  be  seised  of  land  to  the  use  of  B  and  his  heirs,  with  a 
provision  that  if  B  died  childless  the  use  should  'shift'  away  to 
C  and  his  heirs.  Such  an  interest  as  C's  would  have  been  im- 
possible at  Common  Law ;  being,  in  effect,  either  a  right  to 
take  advantage  of  a  condition  imposed  by  a  stranger,  or  a  re- 
mainder after  a  fee  simple. 

The  passing  of  the  Statute  of  Uses  had  a  revolutionary  effect 
on  this  system ;  for  it  converted  all  these  hitherto  '  equitable ' 
interests  into  legal  limitations.  We  have  seen^  how  this  result 
was  evaded,  by  the  collusion  of  the  Courts,  in  the  case  of  trusts. 
The  legislature  itself  attempted  to  avert  the  unforeseen  and  un- 
desired  consequences  in  the  matter  of  alienation. 

Apparently  it  was  determined  to  tolerate  the  'covenant  to 
stand  seised.'  For,  by  some  process  of  reasoning,  it  had  been 
held  by  the  Courts,  that  such  an  instrument  was 
to  stand  only  applicable  to  settlements  intended  to  '  build  up  a 
family,'  and  only  valid  when  based  on  'natural  love  and 
aifectipn. '  Moreover,  by  its  very  nature  it  involved  a  deed. 
And  so,  seemingly  to  this  day,  a  legal  estate  can  be  created  by 
means  of  a  covenant  to  stand  seised  through  the  medium  of  a 
use ;  provided  only  that  it  is  part  of  a  marriage  or  family  settle- 
ment. But  it  was  impossible  to  allow  a  sale  of  land  to  be  effected 
by  mere  word  of  mouth  through  a  '  bargain  and  sale ' ;  and  so 
the  Statute  of  Inrolments^  was  hastily  passed  to  prohibit  such 
a  catastrophe. 

The  Statute  of  Inrolments  provided  that  no  'estate  of  inheri- 
statute  of  tance  or  freehold  should  be  made  or  take  effect  in  any 
Inrolments  pgrsons,  or  any  use  thereof  be  made,  by  reason  only 
of  any  bargain  and  sale  thereof,  except  the  same  bargain 
and  sale  were  made  by  writing  indented  sealed  and  enrolled' 

^  Ante,  pp.  100   101.  »  27  Hen.  VIII  (1536)  c.  16. 


METHODS  OF  ALIENATION  121 

(in  one  of  the  King's  Courts  at  Westminster,  or  with  the  Custos 
Rotulorum  of  the  county  in  which  the  lands  lay),  within  six 
months  after  the  date  of  the  indenture. 

Whatever  the  obscurities  of  style  of  this  famous  enactment, 
it  was,  obviously,  intended  to  prevent,  not  merely  oral,  but 
secret  dealings  in  land.  Apparently,  it  was  really  operative 
for  about  seventy  years ;  for  we  can  trace  a  recognition  of  it 
in  statute,^  text-book,^  and  decision,^  down  to  about  1615. 
But  then  a  daring  evasion  by  a  leading  conveyancer,  known 
as  the  Lease  and  Release,  received  judicral' sanction ;  and  com- 
menced a  successful  career  of  more  than  200  years.  The  Lease 
and  Release,  attributed  to  Serjeant  Moore,  was  based  on  the 
fact  that  the  Statute  of  Inrolments  did  not  apply  to  terms 
of  years.^  Probably  the  permission  was  intentional ;  for, 
as  we  have  seen,^  neither  the  making  nor  the  transfer  of  leases 
for  years  was  attended  by  any  formality  at  the  common  law. 
But  certainly  the  framers  of  the  Act  did  not  foresee  the  extent 
of  the  loop-hole.  For,  by  making  an  oral  bargain  and  sale  for 
one  year,  at  a  money  price,®  the  intending  vendor  could  raise 
a  use  for  a  year  in  favour  of  the  purchaser ;  and  this  use  would 
be  'executed'  by  the  Statute  of  Uses,  and  become  a  legal  estate. 
Then,  by  a  well-established  common  law  practice,  a  simple 
deed  of  Release  would  enable  the  vendor  to  transfer  his  reversion 
to  the  bargainee,  without  the  latter  even  taking  possession.^ 
Thus,  by  this  dual  process,  when  once  formally  recognized  by 
the  Courts,^  it  was  possible  at  last  for  a  conveyance  of  a  freehold 
to  be  made,  not,  it  is  true,  without  a  deed,  but  without  transfer 
of  seisin.  Thus  the  country  lost  the  chance  of  establishing, 
not  indeed  a  Register  of  Titles,  but  a  Register  of  Sales,  which 
might  have  done  much  to  obviate  the  uncertainty  of  later  titles. 

^  5  Eliz.  (1562)  c.  26,  extending  the  principal  Act  to  the  palatine  counties  of 
Chester,  Lancaster,  and  Durham. 
2  Co.  Litt.  35b.  (pub.  1628). 
^Hynde's  Case  (1591)  4  Rep.  70b;    Edward  Seymor's  Case  (1613)   10  Rep.  95b. 

*  This  fact  had  been  pointed  out  in  Heyward's  Case  (1595)  at  fo.  36a. 
'^  Ante,  p.  118. 

^Perhaps  at  first  the  price  was  actually  paid;  but  in  1677  it  was  decided  {Barker 
V.  Keat,  2  Mod.  249)  that  nominal  consideration  was  sufficient. 

^  Apparently,  Serjeant  Moore,  like  every  other  inventor,  had  predecessors ;  for 
a  common  law  process  of  Lease  and  Release  was  known.  But  it  had  this  disad- 
vantage, that  the  lessee  was  obliged  to  take  possession,  in  order  to  convert  his 
interesse  termini  into  an  estate.  For  the  reversioner  could  not  convey  to  the  owner 
of  a  mere  interesse  termini  by  way  of  Release  (Litt.  s.  459). 

*  The  leading  case  is  Lutwich  v.  Mitton  (1620)  Cro.  Jac.  604. 


122    A  SHORT  HISTORY  OF  ENGLISH  LAW 

Incidentally,  also,  the  simple  theory  of  feudal  seisin  became 
greatly  complicated  by  the  grafting  upon  it  of  the  new  statutory 
seisin  of  the  Statute  of  Uses.  For,  though  the  Courts  would 
not  admit  that  a  mere  legal  seisin,  unaccompanied  by  posses- 
sion, w^ould  entitle  the  person  seised  to  the  protection  of  the 
Writ  of  Trespass,^  they  were  obliged  to  hold  him  seised  for 
other  purposes,  e.g.  to  make  him  a  stock  of  descent,  or  to  entitle 
him  to  use  the  possessory  assises  and  Writs  of  Entry.  The  use 
of  the  words  'bargain  and  sale,'  as  applied  to  the  creation  of  a 
term  of  years,  had  previously  been  sanctioned  by  judicial  deci- 
sion ;^  and,  a  few  years  later,  judicial  dictum  laid  it  down,  that 
the  use  of  'words  of  inheritance'  was  necessary  to  pass  a  fee  by 
bargain  and  sale,  as  well  as  by  feoffment.^  Thus  assimilated 
to  an  ordinary  conveyance,  the  Lease  and  Release  became 
practically  the  normal  method  of  transfer  of  lands  until  the 
passing  of  the  Real  Property  Act,  1845,^  in  the  next  period. 
In  addition  to  the  merit  of  secrecy,  it  had  the  further  merits 
of  avoiding  the  necessity  for  attornment  of  the  tenant  on  a 
transfer  of  a  reversion,^  and  of  being  free  from  the  peculiar 
consequences  attending  the  use  of  a  feoffment.  For  all  con- 
veyances by  deed  were  'innocent'  conveyances,  i.e.  they  passed 
nothing  but  what  the  conveying  party  had ;  while  a  J^Qfl^jnent, 
as  we  have  seen,^  might,  until  1845,  have  a  'toituius^  operation.' 
Thus  the  period  we  are  studying  is  remarkable  for  achieving, 
not  merely  the  right  of  free  alienation  of  land,  but  also  the  right 
of  alienation  by  secret  conveyance.  The  latter  achievement 
we  may  sometimes  regret ;  but  it  was,  probably,  necessary  for 
the  complete  emancipation  of  land  from  its  ancient  tribal  and 
feudal  bonds. 

1  'Not  to  have  trespass  without  entry  and  actual  possession'  {Lulwich  v.  Mitton, 
vbi  sup.). 

^Heyward's  Case  (1595)  2  Rep.  35a. 

3  Corbet's  Case  (1599)  1  Rep.,  at  87b. 

*  8  &  9  Vic.  c.  106.  (A  statute  of  the  year  1840  had  allowed  a  deed  of  Release, 
expressed  to  be  made  under  it,  to  take  the  place  of  the  former  'Lease  and  Release.') 

'  Heyward's  Case  (1595)  2  Rep.,  34b.  «  Ante,  p.  108. 


CHAPTER  IX 

THE  LAW  OF  PERSONAL  PROPERTY 

A  SHORT  chapter  will  suffice  to  deal  with  the  law  of  per- 
sonal property  in  this  period ;  not,  as  has  been  sug- 
gested, because  personal  property  was  of  small  value 
in  the  eyes  of  the  law,  but  for  other  and  more  interesting 
reasons.  No  doubt  it  is  true,  that  the  King's  Courts  had  for 
their  original  and  primary  purpose  the  protection  and  adjust- 
ment of  seisin  and  property  in  land.  But,  long  before  our 
period  ends,  they  had  developed  a  very  elaborate  procedure  for 
the  protection  of  that  movable  wealth  which  was  increasing  so 
rapidly  in  England  with  the  discoveries  of  the  fifteenth  and 
sixteenth  centuries,  and  the  growth  of  international  commerce. 
Only,  so  far  as  chattels  corporeal,  or  'goods'  were  concerned, 
they  did  not  build  up  this  law  as  a  code  relating  to  proprietary 
interests.  They  approached  it  through  the  Law  of  Tort,  by 
means  of  the  new  writs  of  Trespass  and  Trover,  and  the  modi- 
fication of  the  old  writ  of  Detinue.  It  will  be  convenient, 
therefore,  to  postpone  our  examination  of  it  till  we  come  to 
the  discussion  of  the  Law  of  Tort,  in  the  following  chapter. 
TTprp^wpjTPpd  (jp^l  "Tily  -tYith  ^chnttnln  iwoorporeal.  or,  as  they 
are  more  commonly  called,  '  cho^es_jii_j-ction,'  which,  though 
the}^  were  at  first  regarded  by  the  Courts  with  some  suspicion, 
became  active  towards  the  end  of  our  period,  and,  in  modern 
times  are,  of  course,  of  vast  importance. 

First  in  point  of  time  and  interest  comes  the  mortgage  debt, 
i.e.   the  claim_f(pr_  the  return  of  money  lent   on  the    security 

„   ,  of   some   tangible   object.      Such   claims    are    among 

Mortgages  .  ^     .  „  .,..,..  j 

the  earliest  fruits  of   a  commercial  civilization,  and 

are  nearly  always  effected  in  the  same  way,  viz.  by  the  deposit 

or  pledge  of  the  security  with  the  creditor,  to  be  redeemed  or 

returned  on  the  payment  of  the  debt.     We  have  seen  ^  that, 

^  Ante,  p.  66. 


124    A   SHORT   HISTORY   OF   ENGLISH   LAW 

even  in  Glanville's  time,  this  process  was  applied  indiscrimi- 
nately to  land  and  chattels  corporeal ;  and,  with  regard  to  the 
latter,  there  is  really  very  little  more  to  say,  for  the  contract  of 
pledge  of  chattels,  though  in  recent  times  regulated  by  the 
Pawnbrokers'  Acts,  is  still,  substantially,  what  it  was  in  Glan- 
ville's day. 

But  the  pledge  or  'gage'  of  land,  though  it  remained,  as  a 
debt,  the  personal  property  of  the  creditor,  yet,  owing  to  its 
connection  with  the  'realty,'  was,  almost  inevitably,  drawn  by 
the  powerful  influence  of  feudalism  within  the  orbit  of  land 
law.  For  though,  as  has  been  said,^  Glanville  did  not  treat  the 
pledgee  of  land  as  an  owner  or  tenant,  yet,  in  fact,  the  pledgee 
was  probably  put  in  possession  of  the  land,  in  order  that  he 
might  take  the  profits,  either  as  interest  {mortgage)  or  in  reduc- 
tion of  the  debt  (vifgage).  Without  some  such  protection, 
he  would  have  had  little  by  way  of  security ;  -  and  so  it  could 
hardly  be  denied  that  he  had  an  interest,  of  some  sort,  in  the 
land.  Glanville^  called  this  interest  'seisin';  and  though, 
as  we  have  seen,^  seisin  came  ultimately  to  be  regarded  as  an 
improper  description  of  the  possession  of  the  termor,  yet  the 
increased  protection  given  in  the  thirteenth  century  to  the 
lessee  for  years  must  have  tended  to  strengthen  the  position 
of  the  mortgagee  of  land,  so  long  as  mortgages  were  effected 
by  mere  pledge,  or  delivery  of  possession. 

Apparently,  however,  this  way  of  effecting  a  mortgage  came 
to  be  regarded  by  conveyancers  as  dangerous.  The  growing 
importance  of  seisin,  the  special  remedies  open  to  the  person 
seised,  induced  them  to  demand  that  their  clients,  the  mort- 
gagees, should  obtain  a  freehold  in  the  land.  Possibly,  also, 
as  has  been  suggested  by  learned  writers,^  there  was  a  technical 
difficulty  in  the  practice  which  arose  later,  of  making  the  pledge 
forfeitable  if  the  debt  was  not  paid  by  a  certain  day.  This 
was,  in  itself,  a  natural  arrangement ;  though  the  Court  of 
Chancery  did  its  best  to  nullify  it  by  establishing  and  develop- 
ing its  famous  maxim :  '  Once  a  mortgage,  always  a  mortgage.' 
But  the  Common  Law  Courts  did  not  like  the  idea  of  a  term  of 
years  enlarging  automatically  into  a  freehold ;    for  one  thing, 

'  Ante,  p.  88. 

'  Glanville  expressly  says  that  the  King's  Courts  would  not,  in  his  day,  interfere ; 
unless  the  land  was  actually  in  the  'seisin'  of  the  creditor  (Lib.  X,  cap.  VIII,  ad  fin.). 
'  Ibid.  *  Ante,  p.  89.  *  P.  &  M.  II,  122. 


THE  LAW  OF  PERSONAL  PROPERTY  125 

the  process  was  an  evasion  of  the  rule  that  a  freehold  could 
only  be  transferred  by  feoffment  with  liverj^  of  seisin.  So, 
by  Littleton's  day/  it  appears  to  have  become  the  practice  for 
mortgages  of  land  to  be  effected  bj^  way  of  feoffments  on  condi- 
tion. The  mortgagor  (borrower)  enfeoffed  the  lender  (mort- 
gagee) in  simple,  but  attached  a  condition  that,  upon  repayment 
of  the  money,  the  mortgagor  might  re-enter  the  land,  and  avoid 
the  estate  of  the  mortgagee.  Of  course  this  arrangement  threw 
upon  the  mortgagor  the  whole  risk  of  omitting  to  make  the 
payment  on  the  prescribed  day;  and  it  was  the  severity  with 
which  the  Common  Law  Courts  enforced  the  condition,  that 
led  to  the  high-handed  interference  of  the  Court  of  Chancery 
in  mortgage  transactions.  The  Chancery,  as  is  well  known, 
insisted  in  regarding  the  mortgage  simply  as  a  security  for  the 
payment  of  the  money,  and  would  allow  the  borrower  to  recover 
his  land  by  payment  of  the  principal  and  interest  at  any  time, 
making  the  creditor  account  rigidl}-  for  any  profits  derived  from 
his  occupation,  if  he  had  been  in  possession  of  the  land.  But 
the  formal  recognition  of  the  lawfulness  of  taking  moderate 
interest  in  mortgage  transactions,  which  occurred  in  1545,^ 
seems  to  have  speedily  substituted  for  the  old  mortgage,  under 
which  the  creditor  took  possession  of  the  land  at  once,  some- 
thing like  the  modern  arrangement,  in  which  the  debtor  cove- 
nants to  pay  a  fixed  interest,  and,  so  long  as  he  does  so  regularly, 
the  creditor  does  not  take  possession.  The  substitution  for  the 
old  Feoffment  of  the  new  conveyance  by  Lease  and  Release  ^ 
would,  obviously,  facilitate  such  a  change,  by  rendering  actual 
transfer  of  seisin  unnecessary.  Nevertheless,  in  spite  of  the 
efforts  of  Chancery,  the  freehold  mortgage  retained  serious 
defects  till  quite  recent  times ;  one  of  the  most  serious  being 
that,  whereas  the  debt  itself  was  personalty,  and  went  to  the 
mortgagee's  executor  on  his  death,  the  estate  in  the  land  was 
realty,  and  went  to  his  heir.'^  Accordingl}-,  we  ar^  not  surprised 
to  find  it  stated  by  a  learned  conveyancer  of  later  days,  that, 
at  the  end  of  the  sixteenth  century,  there  was  a  revival  of  the 

'  Ss.  332-344.  Apparently  the  vifgage  was  still  known  in  Littleton's  day  (s.  327), 
but  rather  as  a  supplement  to  the  right  of  distress  than  as  a  substantive  transaction. 

2  37  Hen.  VIII,  c.  9,  s.  4 ;  13  Eliz.  (1570)  c.  8.  (The  maximum  rate  was  10  per 
cent.) 

'  Ante,  pp.  121-122. 

*  There  were  other  drawbacks,  e.g.  the  claim  of  the  mortgagee's  widow  to  dower. 


126    A   SHORT   HISTORY  OF  ENGLISH   LAW 

practice  of  effecting  mortgages  by  creating  terms  of  years.^ 
But  these  were  effected  by  deed,  not  by  delivery  of  the  land  in 
pledge,  as  in  the  days  of  Glanville. 

It  must  not  be  supposed,  however,  that  the  formal  mort- 
gage was  the  only  '  real  '  sepurity  known  to  the  English  creditor 

in  the   later   Middle   Ages.     The   famous   statute   of 
Statvtes  ^ 

}j  ^\  ^ctQCL  Burnel  ^^enabled  a  merchant  to  enter^into  a 

'''^  sealed  recognizance,  or  acknowledgment  of  debt,  before  the 
mayor  of  a  chartered  borough ;  and  empowered  the  creditor, 
on  default,  to  seize  the  body  of  the  debtor.  If,  after  three 
months  further  delay,  the  debt  were  still  unpaid,  the  lands 
and  goods  of  the  debtor  were  deli\'ered  by  the  sheriff  to  the 
creditor  '  by  a  reasonable  extent '  (i.e.  estimate) ;  the  creditor 
being  entitled  to  hold  them  until  his  debt  was  satisfied  out  of 
the  profits,  and  having  his  possession  of  the  land  protected  by 
the  then  highly  popular  Assise  of  Novel  Disseisin.^  The  great 
Statute  of  the  Staple,  in  1353,^  extended  a  similar  protection 
l;o  recognizances  entered  into  before  the  mayors  of  staple  towns ; 
and,  so  popular  did  the  new  form  of  security  become,  that,  under 
cover  of  fictions,  it  was  resorted  to  by  persons  who  were  neither 
merchants  nor  staplers.  "  Accordingly,  in  the  year  1531,^  the 
'  recognizance  in  the  nature  of  a  statute  staple '  was  formally 
sanctioned  by  the  legislature ;  and  the  '  statute '  appears  in 
Elizabethan  literature,  among  such  other  treasures  as  bonds, 
mortgages,  and  bills,  as  part  of  the  normal  equipment  of  the 
grasping  money-lender.  The  Acts  of  Parliament  authorizing 
statutes  merchant  and  staple  were  not  repealed  till  1863 ;  ^  but 
the  '  statutes  '  themselves  had  then  long  been  obsolete.  Never- 
theless, they  are  interesting  as  the  nearest  approach  to  a 
'  hypothec,'  or  real  charge,  of  land,  which  English  Law  has 
known. 

Of  still  greater  historical  and  practical  importance  are  bills 
of  exchange,  cases  about  which  do  not  begin  to  come  into  the 

'  Barton,  Modern  Precedents,  V,  133.  There  was  certainly  the  form  of  absolute 
conveyance  (bargain  and  sale)  accompanied  by  deed  of  defeasance  (West,  Sym- 
bolaographia,  s.  269). 

2  11  Edw.  I  (1283),  amended  by  the  Statute  of  Merchants  (13  Edw.  I  (1285)  c.  1). 
In  the  latter  year,  a  similar  remedy  (but  restricted  to  half  the  debtor's  land),  was 
given  to  judgment  creditors  by  the  Statute  of  Westminister  II  (13  Edw.  I,  st.  1 
(1285)  c.  18). 

'  This  was  anomalous ;    for  the  Assise  was,  properly,  a  freeholder's  remedy. 

*  27  p:dw.  Ill,  St.  II,  c.  9.  *  23  Hen.  VIII,  c.  6. 

•  Statute  Law  Revision  Act  of  that  year. 


THE  LAW  OF  PERSONAL  PROPERTY  127 

King's  Courts  till  towards  the  end  of  our  present  period/ 
BUis  of  though  they  were  probably  famihar,   long  ere  that 

Exchange  date,  to  the  courts  administering  the  Law  Merchant. 
The  subject  has  never  been  satisfactorily  investigated,  so  far 
as  England  is  concerned ;  but  it  is  clear  that  such  documents 
were  known  on  the  Continent  from  a  very  early  date,-  and  it 
is  unlikely  that  they  remained  long  unknown  in  this  country 
after  the  beginning  of  the  thirteenth  century.  Probably  they 
were  first  introduced  to  overcome  the  risk  and  expense  of  the 
actual  transport  of  coins.  European  roads  were  very  unsafe 
in  the  Middle  Ages ;  and  a  merchant  of  Paris,  who  owed  a  debt 
to  a  London  merchant,  would  hesitate  long  before  trusting  the 
money  to  the  perils  of  the  journey  between  Paris  and  London. 
If,  as  was  not  unlikely,  a  second  London  merchant  owed  him 
(the  Paris  merchant)  a  similar  or  larger  sum,  he  w^ould  save 
much  risk  and  expense  by  simply  directing  the  second  London 
merchant  to  pay  over  the  sum  to  the  first ;  and  the  letter,  or 
*  bill,'  containing  this  request  would,  naturally,  be  sent  to 
the  first  London  merchant  for  presentation  to  the  second. 
If  the  latter  did  not  admit  that  he  was  indebted  to  the  writer 
or  drawer  of  the  letter  or  bill,  he  refused  to  accept,  or  'dis- 
honoured,' the  request;  but,  at  any  rate,  the  dishonoured 
missive  served  as  an  acknowledgment  by  the  merchant  at  Paris 
of  his  indebtedness. 

Probably,  also,  letters  or  bills  of  exchange  were  used  at  an 
early  date  to  get  over  the  difficulties  of  foreign  exchange.  In 
the  days  when  the  coinage  of  Western  Europe  was  in  a  thor- 
oughly unsatisfactory  condition,  the  terms  of  exchange  were 
a  matter  of  the  highest  importance  for  international  trade. 
Accordingly,  we  find  Edward  III,  in  his  Statute  of  Money,* 
providing  that  Tables  of  Exchange  shall  be  set  up  at  Dover 
and  other  places  approved  by  the  Council,  and  exchanges  there 
effected  by  Wardens  under  the  inspection  of  Royal  Comptrollers. 
In  all  probability,  this  statute  contemplated  the  actual  exchange 
of  coins  at  a  physical  table ;    but  this  clumsy  method  must,  one 

1  The  earliest  reported  is  said  to  be  Martin  v.  Bure,  in  1602  (Cro.  Jac.  6).  The 
Court  seems  to  be  perfectly  familiar  with  the  document. 

2  See  the  author's  Early  History  of  Negotiable  Instruments  (Select  Essays  in 
Anglo- American  Legal  History,  III,  51-71). 

^  9  Edw.  Ill,  St.  II  (1335)  c.  7.  The  enactment  was  repealed  in  1344,  on  the 
issue  of  the  new  gold  coinage    (18  Edw.  Ill,  st.  II,  c.  6). 


128    A   SHORT  HISTORY   OF  ENGLISH   LAW 

would  think,  have  soon  given  way  before  a  documentary  sj'stem 
of  notes  based  on  a  schedule,  or  '  table,'  of  rates  of  exchange. 
It  is  also  probable,  that  the  protectionist  policy  of  the  later 
fourteenth  century,  which  aimed  at  preventing  the  export  of 
English  coin,^  did  a  good  deal  to  encourage  the  use  of  negotiable 
paper.  At  any  rate,  we  get  a  definite  mention  of  'letters  of 
exchange'  in  a  statute  of  1379.-  In  the  year  1390,  Richard  II's 
Parliament  enacted  that  every  foreign  merchant  who  sent 
English  money  abroad  should  give  a  bond  to  the  Chancellor 
to  buy  within  three  months  staple  English  goods  of  the  same 
value,  which  must,  presumably,  have  been  paid  for  in  English 
coin.^  What  more  likely  than  that  this  rule  should  induce 
merchants  to  conduct  their  transactions  by  means  of  letters 
of  credit,  easily  transportable?"*  The  elaborate  Money  Statute 
of  1477^  expressly  provides  that  the  foreign  merchant,  before  his 
departure,  shall  prove  his  compliance  with  the  policy  of  Richard's 
statute,  by  a  '  writing '  to  the  merchants  to  whom  he  sold  his 
goods,  or  by  other  sufficient  proof.  An  Act  of  1487,^  aimed  at 
eradicating  a  species  of  'new  Chevisaunce'  called  'dry  exchange,' 
speaks  of  '  buying  any  obligation  or  bill ' ;  and  INIalynes,  who 
wrote  in  1622,^  expressly  says,  referring  to  this  statute,  that 
this  process  of  'dry  exchange'  was  carried  on  by  means  of 
bills  of  exchange.  It  is  obvious  that  such  documents  were 
familiar  to  jMalynes,  who,  in  his  Lex  M creator ia,  incorporated 
a  treatise  on  them  by  John  Marius,  a  notary  public. 

A  more  notorious,  and  equally  valuable,  form  of  personal 
property  appeared  also  as  a  lawful  institution  at  the  end  of 
the  period  we  are  now  discussing ;  but  it  had  an 
earlier,  and  somewhat  stormy  career,  as  a  chartered 
libertine.  The  powers  claimed  for  the  prerogative  in  the  Middle 
Ages  in  the  matter  of  the  regulation  of  trade  and  commerce 
were  extensive  and  vague;  and,  with  the  expansion  of  trade 
which  took  place  in  the  early  sixteenth  century,  it  was  not 
unnatural  that  the  Crown,  always  suspicious  of    international 

1  E.g.  27  Edw.  Ill,  st.  II  (1353)  c.  14.  «3  Ric.  II,  c.  3  (2). 

'  14  Ric.  II,  c.  2.  A  note  (or  'estreat')  of  these  bonds  had  to  be  sent  to  the 
Exfhequer  every  fifteen  days  (11  Hen.  IV  (1409)  c.  8). 

*  The  statute  of  1353  provides  that  the  searchers  at  the  ports  shall  give  the  foreign 
merchant  a  'writing'  showing  the  amount  of  foreign  money  brought  into  the  realm 
by  him. 

<■  17  Edw.  IV.  e.  1.  6.3  picn.  VII,  c.  6. 

^  Lex  M creator ia,  Part  III,  ch.  1  (p.  201). 


THE  LAW  OF  PERSONAL  PROPERTY  129 

dealings  which  it  did  not  itself  supervise,  should  attempt  to 
regulate  foreign  trade  by  granting  the  monopoly  of  dealing 
with  various  countries  to  different  companies  of  merchants. 
So  long  as  any  respectable  English  merchant  who  wished  to 
join  the  company  could  do  so,  there  was  nothing  opposed  to 
the  spirit  of  the  age  in  such  an  arrangement.  But  when  it  came 
to  granting  monopolies  of  articles  like  soap,  playing  cards, 
silver  lace,  and  so  forth,  not  to  adventurous  companies,  but 
to  Court  favourites,  who  simply  made  use  of  their  privileges 
to  sweat  the  public,  popular  feeling  began  to  rise.  As  is  well 
known,  the  question  of  the  legality  of  Letters  Patent  conferring 
such  monopolies  slumbered  uneasily,  or  awoke  but  fitfully, 
during  the  reign  of  Elizabeth ;  but  with  the  advent  of  her 
successor,  it  arose  to  vigorous  life.  At  length,  by  the  Statute 
of  Monopolies  of  1623,^  it  was  enacted  that  all  monopolies, 
however  granted,  should  be  absolutely  void;  with  the  excep- 
tion of  Letters  Patent  and  grants  of  privileges  for  terms  not 
exceeding  fourteen  years,  for  the  working  or  making  of  new 
manufactures  within  the  realm,  in  favour  of  the  true  and  first 
inventors  thereof.  This  exception  is  still  the  basis  of  our 
Patent  Law ;  though,  as  we  shall  see,  in  considering  the  next 
period,  the  simple  provision  of  1623  has  expanded  into  a  great 
Patent  Code. 

The  last  form  of  personal  property  to  which  reference  need 
be  made  under  this  period  is  copyright.  No  formal  recognition 
Copyright  ^^  ^^  author's  right  to  secure  the  profits  of  his  pub- 
lications appears  to  have  been  accorded.  But  it 
seems  to  have  been  the  practice  to  regard  a  license  to  publish 
as  conferring  something  in  the  nature  of  exclusive  rights ;  and 
there  are  traces  of  such  rights  having  been  made  the  subject 
of  Letters  Patent.-  As  is  well  known,  it  was  the  policy  of  the 
State,  from  the  time  of  the  introduction  of  printing,  to  keep  a 
tight  hand  on  the  operations  of  the  press.  Again,  the  action 
of  the  State  must  not  be  hastily  condemned.  The  appearance 
of  the  printing-press  speedily  revolutionized  politics,  and  at  first 
rendered  the  task  of  government  enormously  difficult.  It  was 
against  the  abuses  of  the  licensing  system,  especially  in  the  later 
days  of  the  Star  Chamber,  more  than  against  the  system  itself, 
that  popular   feeling   rose.     Still,   the   appearance   of   Milton's 

1  21  Jac.  I,  c.  3.  «  Licensing  Act  of  1662  (13  Car.  II,  c.  33,  s.  6). 


130    A   SHORT  HISTORY  OF  ENGLISH  LAW 

splendid  Areopagitica:  or  Speech  for  the  Libert i/  of  LnJicensed 
Printing,  in  the  year  1644,  showed  which  way  the  tide  was 
turning;  and,  as  we  shall  see,  in  discussing  the  next  period, 
the  licensing  system  did  not,  in  England,  survive  the  seven- 
teenth century.  Unfortunately,  when  it  fell,  it  left  the  hapless 
author  unprotected;  and  it  was  not  until  1709^  that  the  first 
statutory  recognition  of  copyright  was  granted. 

It  now  remains  only  to  point  out,  that  succession  to  personal 
property  after  the  death  of  its  owner  receiAed  some  further 
WiUs  and  treatment  in  this  period  on  the  lines  described  in 
Intestacies  ^^-^  earlier  chapter.  The  Statute  of  Westminster 
the  Second,-  as  we  have  seen,  clearly  recognizes  the  responsi- 
bility of  the  executor  for  the  deceased's  debts,  to  the  amount 
of  his  personalty,  and  extends  it  to  the  *  Ordinary '  of  the  Church 
on  intestacy.  It  likewise  gives  the  executor  a  remedy  by  Writ 
of  Account  against  the  deceased's  debtors.  A  statute  of  1330 
set  aside  the  maxim :  actio  poenalis  moritur  cum  persona,  to  the 
extent  of  allowing  executors  to  sue  for  trespasses  de  bonis  asporia- 
iis  committed  against  their  testator  during  his  lifetime;^  and 
another,  of  1352,^  puts  the  executor's  executor  in  the  same  posi- 
tion, both  as  regards  rights  and  liabilities,  as  the  original  exec- 
utor. This  last  Act,  also,  tells  us  incidentally,  that  statutes 
merchant  and  recognizances  were  enforceable  b}^  executors. 
Seven  years  later,  the  'Ordinary'  is  compelled  to  appoint,  as 
'administrator'  of  the  intestate's  goods,  'the  next  and  most 
lawful  friends  of  the  deceased,'^  who  are  to  have  the  rights  and 
liabilities  of  executors  in  respect  of  the  estate.  The  fees  de- 
manded by  the  ecclesiastical  courts  for  probates  and  grants  of 
administration  were  severely  regulated  by  statute  at  the  Refor- 
mation ;  ^  but,  as  we  have  said,  the  jurisdiction  in  testamentary 
matters  was  not  taken  away  from  them,  and  even  survived  the 
Civil  War  and  the  Commonwealth.  Nevertheless,  the  latter  pe- 
riod was  disastrous  to  it ;  for,  during  the  Interregnum,  the  King's 
courts  began  to  entertain  suits  for  the  payment  of  legacies ;  ^ 
and  the  King's  courts  rarely  gave  up  any  jurisdiction  which 
they  had  once  acquired.  The  most  startling  development  of 
the  law  of  succession  to  personalty  in  this   period  is,  however, 

'  8  Anne,  c.  19.  *  25  Edw.  Ill,  st.  V,  c.  5. 

2  1.3  Edw.   I  (1285)  cc.   19,  23.  '/.e.  his  nearest  relatives. 

3  4  Edw.  Ill,  c.  7.  6  21  Hen.  VIII  (1529)  c.  5. 
'  Nicholson  v.  Sharman  (1661)  1  Sid.,  at  p.  46. 


THE  LAW  OF  PERSONAL  PROPERTY  131 

the  claim  of  the  executor  to  keep  for  his  own  benefit  any  prop- 
erty not  disposed  of  by  the  will ;  unless  the  testator  had, 
directly  or  by  implication,  excluded  him.  How  this  remark- 
able doctrine  came  to  be  accepted,  it  is  not  easy  to  discover.^ 
It  is  true,  that  the  executor  had  always  distributed  the  'dead's 
part,'  and  that  the  rule  of  'legitim'^  seems  to  have  largely 
disappeared  in  the  sixteenth  and  seventeenth  centuries,  leaving 
scope  for  the  familiar  residuary  bequest.  But  the  rules  of 
intestate  succession  were  settled  by  the  Statutes  of  Distribution 
in  1670  and  1685;^  and  j-et  the  rule  in  favour  of  executors, 
despite  judicial  criticism,^  lingered  until  1830,  when  it  was 
partially,  but  not  entirely,  altered  by  the  Executors  Act.^  Even 
now  it  prevails  against  the  claim  of  the  Crown  ;^  and  this  is 
the  more  remarkable,  that  the  Crown  has  long  claimed,  as 
bona  vacantia,  personal  property  in  the  hands  of  a  trustee,  where 
the  trusts  have  failed  and  there  are  no  representatives  of  the 
settlor.  In  the  case  of  land,  the  theory  of  tenure  gave  the 
beneficial  interest,  in  similar  circumstances,  to  the  trustee;^ 
but  even  this  rule  has  lately  been  altered  by  statute.^ 

J  See  on  this  point  the  essay  of  Caillemer,  previously  referred  to  (Select  Essaya 
in  Anglo- American  Legal  History,  III,  746-769). 

2  Ante,  pp.   60,  61.  s  22  &  23  Car.  II,  c.  10 ;    1  Jac.  II,  c.  17,  ss.  6,  7. 

^A.  G.  V.  Hooker  (1725)  2  P.  Wms.  338  (King,  C). 

6  11  Geo.  IV  &  1  Will.  IV,  c.  40. 

«  Re  Bacon's  Will  (1881)  31  Ch.  D.  460. 

'  Burgess  v.  Wheate  (1759)   1  Ed.  177. 

*  Intestates  Estates  Act,  1884,  s.  4. 


CHAPTER  X 

CONTRACT  AND  TORT 

IT  has  previously  been  pointed  out  in  this  book,  in  more 
than  one  passage,  that  one  of  the  most  striking  lessons 
to  be  learned  from  a  study  of  legal  history  is,  that  ideas 
which  to  us  now  seem  absolutely  distinct,  and  even  opposed, 
are  found  originally  to  have  been  blended  in  a  common  stock, 
from  which  they  have  subsequenth^  split  off  by  a  process  of 
specialization.  No  better  example  of  this  truth  could  be  found 
than  in  the  history  of  Contract  and  Tort.  To  us,  these  two 
institutions  seem  wholly  distinct ;  separate  books  are  written 
about  them,  and  Acts  of  Parliament  treat  them  as  mutually 
exclusive.  We  regard  an  action  of  Contract  as  an  action  to 
prevent  or  compensate  for  a  breach  of  a  promise ;  an  action 
of  Tort  as  an  action  to  punish  or  compensate  for  a  wrong,  such 
as  assault  or  defamation,  which  has  not  any  necessary  connec- 
tion with  a  promise.  An  ordinary  defence  to  an  action  of 
Contract  is,  in  effect :  '  I  did  not  promise.'  What  should  we 
think  if  a  defendant  in  an  action  for  libel  defended  himself  on 
the  ground  that  he  had  not  promised  not  to  libel  the  plaintiff? 
It  is  true  that,  occasionally,  a  case  arises  which  causes  some 
difficulty ;  ^  and  it  would  hardly  be  possible  to  throw  a  more 
effective  apple  of  discord  into  a  company  of  lawyers,  than  by 
starting  a  discussion  on  the  question  whether  Detinue  was  an 
action  of  Contract  or  of  Tort.  But  we  are  apt  to  regard  these 
difficulties  as  inseparable  from  any  legal  classification ;  whereas 
a  little  knowledge  of  history  would  enable  us  to  trace  them  to 
their  true  source.  As  a  matter  of  historical  fact,  the  simple  con- 
tract and  the  ordinary  tort  spring  from  the  same  stock ;  and  the 
wonder  would  be  if  they  did  not,  in  some  points,  betray  signs 
of  their  common  origin. 

1  E.o.  Bryant  v.  Herbert  (1878)  3  C.P.D.  389;    Du  Pasquier  v.  Cadbury  [1903]  1 
K.B.   101. 


CONTRACT  AND  TORT  133 

We  have  seen  that,  in  the  previous  period,  the  only  remedy 
of  a  general  nature  for  anything  like  what  we  understand  by 
Pg^^  a  contract,  was  the  Action  QL.Debt.^     This  action 

was,  at  first,  in  truth  an  action  to  recover  a  specific 
object ;  usually  a  moveable,  because  actions  to  recover  land 
were  conducted  by  other  and  more  elaborate  machinery.  By 
Bracton's  time,  as  we  have  seen,  it  had  specialized  into  two 
forms,  the  Writ  of  Debt,  strictly,  in  which  a  fixed  sum  of  money 
was  sought  to  be~recovered,  and  the  Writ  of  Detinue,  in  which 
a  specific  chattel  was  the  object  pursued- 

In  the  period  we  are  now  discussing,  the  Writ  of  Debt  speedily 
lost  its  original  character  as  an  action  to  recover  money  lent 
or  bailed,  and  was  applicable  to  any  case  in  which  the  plaintiff 
sought  to  recover  a  fixed  sum  of  money,  due  to  him  on  grounds 
which  the  law  considered  to  be  adequate.  Thus,  for  example, 
if  a  tenant  failed  to  pay  his  rent  (though  he  had  not  expressly 
covenanted  to  do  so),-  if  a  sheriff,^  or  the  Warjden  of  the  Fleet,'* 
allowed  a  debtor  to  escape,  if  a  sum  was  found  due  from  a  debtor 
on  account  stated,^  all  these  were  liable  to  an  Action  of  Debt. 
In  some  cases,  e.g.  the  case  of  rent,  there  had,  no  doubt,  been 
something  very  like  a  contract ;  where  the  Action  of  Debt  was 
brought  on  a  bond,  we  should  consider  it  strictly  contractual. 
Still,  the  old  rule  of  Glan^ille,  that  in  an^Action  for  Debt  the 

King's  Courts  would  not  enforce  a-xnere  '  private agreement,' .. 

held  good  throughout  the  whole  history  of  the  Action  of  Debt ; 
and  so  that  action  can  only  be  held  to  have  contributed  in 
a  very  minor  degree  to  the  development  of  the  Law  of  Con- 
tract. Moreover,  it  rapidly  became  unpopular  in  this  period, 
owing  to  the  fact  that  unless  the  plaintiff  could  show  excep- 
tionally good  proof  of  his  claim,  e.g.  a  sealed  charter,  the 
defendant  could  get  off  by  '  waging  his  law.'  It  was,  there- 
fore, in  spite  of  the  provisions  of  the  Statute  of  Westminster 
the  Second,^  very  unsuitable  for  use  against  executors ;  and  in 
fact,  it  could  not  be  brought  against  them  in  cases  in  which  their 
testator,  had  he  lived,  would  have  been  entitled  to'  wage  his  law.' 

^Ante  pp.  56-58. 

^  8  Anne  (1709)  c.  14,  s.  4.  (This  statute  merely  extended  the  liability  to  tenant 
for  life.     The  tenant  for  years  was  liable  at  common  law.)- 

3  Statute  of  Westminster  II  (13  Edw.  I,  st.  I  (1285)  c.  11). 

^  1  Ric.  II  (1377)  c.  12.  (The  sheriff  or  warden  was  liable  for  the  sum  owed  by 
the  debtor.) 

<•  5  Hen.  IV  (1403)  c.  8.  «  Ante^'p.  64. 


134     A   SHORT  HISTORY   OF   ENGLISH  LAW 

The  Action  of  Detinue,  as  we  have  said/  lay  where  a  specific 

chattel  belonging  to  the  plaintiff  was  in  the  hands  of  the  defend- 

^  ^  ant,  who  refused  to  give  it  up.     But  it  behoved  the 

Detinue  '  .  ,  .         .  , 

plaintiff    to  be  icautious  m  stating  in  what    manner 

he  alleged  the  chattel  to  have  come  into  the  defendant's  hands. 
He  had  to  be  careful  to  avoid  '  words  of  felony,'  i.e.  anything 
that  might  sound  like  a  charge  of  theft  or  robbery ;  for,  if  he 
did  not,  he  laid  himself  open  to  being  met  by  the  argument 
that  his  proper  procedure  was  an  '  appeal  of  larceny,'  upon 
which  he  was  obliged  to  offer  battle.  So  it  appears  to  have 
been  the  practice  in  the  early  Writs  of  Detinue  for  the  plaintiff 
to  allege  (what  was,  no  doubt,  in  many  cases,  the  strict  truth), 
that  he  had  himself  '  bailed '  or  delivered  the  chattel  to  the 
defendant  in  the  first  instance.  Thus  the  form  of  action  known 
as  '  Detinue  sur  bailment '  became  the  orthodox  form ;  and  thus 
Detinue  appeared  to  be  an  action  founded  on  contract.^  For 
a  voluntary  delivery  or  bailment  of  a  chattel,  accepted  by  the 
defendant,  is  something  very  like  an  agreement,  from  which 
a  promise  to  return  the  chattel  can  well  be  implied.  Neverthe- 
less, the  promise  is  only  implied  ;  and  it  is  very  doubtful  whether, 
to  the  mind  of  Glanville  or  Bracton,  Detinue  was  really  regarded 
as  a  contractual  action.  In  the  middle  of  the  fourteenth  cen- 
tury,^ the  plaintiff  was  allowed  to  substitute  for  the  allegation 
of  bailment  the  wider  allegation  that  the  goods  '  came  to  the 
hands'  (devenerunt  ad  manus)  of  the  defendant,  without  saying 
how ;  and  thus  the  Action  of  Detinue  lost  whatever  contract- 
ual character  it  may  once  have  had.  How  it  acquired  its 
tortious  character,  we  shall  see  later  on.  At  any  rate,  there 
was  no  possibility  of  a  general  theory  of  contract  developing 
out  of  the  Action  of  Detinue. 

A  third  possible  source  of  contract  at  the  beginning  of  the 
period   was   the   Action    of    Covenant,    about   which,    unfortu- 
nately, we   know   very  little.     We  have   seen*  that 
Glanville  treats  a  deed  or  charter  as  one  of  the  causae 
or  grounds  of  Debt ;    and  it  is  very  significant  that  Debt  and 

1  Ante,  p.  57. 

'  This  is  the  viow  taken  by  the  late  Professor  Ames,  whose  brilliant  studies  of 
the  history  of  Contract  and  Tort  are  reprinted  in  Select  Essays  in  Anglo-Ameri- 
can Legal  History  Vol.  Ill,  pp.  259-.319,  417-44.5.  But  the  difficulties  of  trying 
to  build  a  theory  of  contract  on  bailment  are  well  illustrated  by  the  famous  case 
of  Coggs  v.  Bernard  (170.3)  2  Ld.  llaym.  909. 

3  Wagworth  v.  Halyday,  Y.B.  29  Edw.  Ill  (1355),  fo.  38b.  *  Ante,  p.  66. 


CONTRACT  AND   TORT  135 

not  Covenant  remained  the  proper  form  of  action  on  a  common 
money  bond  until  quite  late  in  this  period.^  This  curious 
fact  may  be  accounted  for  by  assuming  (as  we  are  warranted 
in  doing)  that  in  early  times  the  sealed  bond  was  looked  upon 
rather  as  the  symbol  than  as  the  ground  of  the  debtor's  liability  ; 
in  other  words,  that  the  debtor  was  regarded  as  the  object  pledged, 
or  bound,^  the  document  being  given  as  a  security  for  his  return 
to  captivity  if  he  failed  to  pay  the  debt.  Nevertheless,  the 
language  of  Glanville,  that,  if  the  defendant  acknowledges  the 
genuineness  of  the  charter,  he  is  bound  to  warrant  its  terms, 
and  to  observe  the  compact  expressed  in  it,  points  to  the  fact 
that,  even  in  the  twelfth  century,  the  sealed  charter  was  assum- 
ing a  wider  form  than  the  mere  acknowledgment  of  a  debt. 
Indeed,  we  know  independently'  that  at  least  two  very  impor- 
tant transactions,  viz.  a  lease  for  years  and  an  agreement  to 
levy  a  Fine,  were  being  made  b\'  deed  before  the  end  of  the 
thirteenth  century.  But  both  these  were  rather  in  the  nature 
of  '  covenants  real '  than  personal  contracts  ;  and  the  remedy  for 
breach  of  them  seems  to  have  been  more  in  the  nature  of  specific 
performance  than  a  money  compensation.^ 

Nevertheless,  it  is  clear  that,  before  the  end  of  the  fourteenth 
century,  the  Writ  of  Covenant  enabled  an  action  to  be  brought 
for  *  unliquidated  damages  '  on  breach  of  any  of  the  terms  of  a 
sealed  instrument.  And  this  rule  has  prevailed  to  the  present 
day ;  giving  us  our  '  specialty '  or  '  formal '  contract,  which 
includes  any  lawful  promise  made  under  seal. 

By  far  the  greater  number  of  contracts  entered  into  in  ordi- 
nary life  are,  however,  not  embodied  in  sealed  documents. 
Simple  They  are    either   contained    in  ordinary   correspond- 

Contracts  ^^^^  ^j.  j^qj.^  ^^-pitten  memoranda,  or  they  are  made 
solely  by  word  of  mouth  or  conduct.  These  are  all  now,  by 
English  Law,  termed  '  simple  '  or  '  parol '  contracts ;  and  our 
problem  is,  to  discover  how  they  obtained  a  foothold  in  the 
common  law,  despite  the  attitude  of  the  King's  Courts  so  clearly 
stated  by  Glanville.  To  do  this,  we  must  turn  aside  entirely 
from  the  realm  of  Debt  and  Covenant,  and  enter  what  seems, 
at  first  sight,  a  very  unlikely  quarter. 

^  Thus  in  1584  (Anon.  3  Leon.  119)  it  was  doubted  if  covenant  lay  on  a  specialty 
promise  to  pay  a  fixed  sum. 

^  The  word  points  to  the  original  physical  bondage  of  the  debtor.  Early  legal 
liistory  is  full  of  such  cases. 

3  6  Ed.  I  (1278)  c.  11  (1),  '  recover  by  Writ  of  Covenant.' 


13G    A   SHORT  HISTORY  OF  ENGLISH  LAW 

Apparently,  the  inventiveness  of  the  Chancellor  and  judges 
in  the  matter  of  making  new  writs  had  come  to  an  end  in  the 
latter  half  of  the  thirteenth  century.  At  any  rate, 
^^*  there  were  complaints  in  Parliament  of  suitors  being 

turned  away  empty-handed  because  there  was  no  writ  to  suit 
their  cases.  Accordingly,  the  great  Statute  of  Westminster 
the  Second  ^  sought  to  provide  a  remedy  by  enacting,  that  .'when- 
soever from  henceforth  it  shall  fortune  in  the  Chancery,  that 
in  one  case  a  writ  is  found,  and  in  like  case  falling  uiicler  like 
law,  and  requiring  like  rehiedy,  is  found  none,  the  Clerks  of 
the  Chancery  shall  agree  in  making  a  writ '  (and,  if  they  don't 
there  is  to  be  an  appeal  to  Parliament). 

This  enactment,  though  it  appears  only  at  the  end  of  a  chapter 
on  special  cases,  seems  to  have  been  taken  as  a  general  authority 
for  the  expansion  of  legal  remedies ;  and  under  it  were  formed 
many  new  writs  on  the  analogy  of  the  older  writs  found  in  the 
Register.  These  new  writs  were  all  grouped  together  under  the 
name  of  ^  Case  ' ;  apparently  from  the  words  used  in  the  Statute 
of  Westminster  the  Second  —  in  consimili  casu.  Another  feature 
common  to  them  all  was,  that  each  was  framed  on  the  model  of  a 
specific  older  writ ;  enlarging  its  scope  by  omitting  one  or  more 
of  the  technical  requirements  of  the  older  document. 

One  of  the  first,  if  not  the  very  first  model  made  use  of  for  this 
purpose  was  the  famous  Writ  of  Trespass,  which,  as  we  have 
Trespass  on  seen,"  had  been  introduced  into  the  Register  at  the 
the  Case  gj^j  ^f  ^}^g  preceding  period,  and  which  speedily 
became  very  popular.  The  gist  of  the  Writ  of  Trespass  was 
an  allegation  that  the  defendant  had,  '  with  force  and  arms,' 
{vi  et  armis)  and  '  against  the  peace  of  our  Lord  the  King ' 
{contra  yacem  domini  regis)  interfered  with  the  plaintiff's 
possession  of  his  body,  Jand,  or  goods.  No  doubt  at  first  the 
'  force  and  arms  '  were  taken  seriously ;  but  the  writ  speedily 
came  to  cover  every  interference  with  possession,  however 
trifling  and  accidental.  Nevertheless,  the  Courts  held  fast  to 
the  technical  point,  that,  to-  amount  to  a  trespass,  there  must 
have  been  interference  with  the  plaintiff's  possession  by  some 
voluntary  act  of  the  defendant,  his  servants,  or  his  cattle. 

It  speedily  came  to  be  perceived,  however,  that  there  were 
many  circumstances  in  which  the  plaintiff  had  suffered  serious 

J  13  Edw.  I,  St.  I  (1275)  c.  24  (2).  ^  Ante,  pp.  52-54. 


CONTRACT  AND  TORT  137 

loss  by  the  defendant's  action,  though  the  latter  had  not,  tech- 
nically, been  guilty  of  trespass.  Thus,  in  the  middle  of  the 
fourteenth  century,  a  Huniber  ferryman  so  overloaded  his 
boat,  that  the  plaintiff's  horse,  which  was  on  board,  was  drowned.^ 
There  was  no  trespass ;  because  the  plaintiff  had  voluntarily 
parted  with  the  possession  of  his  horse  when  he  put  him  on  the 
defendant's  boat.  Similarly,  when  a  smith  lamed  a  horse 
entrusted  to  him  to  be  shod,^  or  a  leech  so  negligently  did  his 
cure,  that  the  horse  died,^  or  a  surgeon  mismanaged  the  plaintiff's 
hand  which  he  undertook  to  cure.^  In  all  these  cases,  though 
there  was  no  trespass,  there  was  actual  malfeasance  or  wrong- 
doing in  respect  of  a  physical  object  by  the  defendant,  from 
which  the  plaintiff  suffered  loss;  and  so  the  analogous  action 
of  '  Case,'  or  '  Trespass  on  the  Case,'  ^  was  allowed.  For  some 
time,  the  action  was  restricted  to  cases  in  which  the  defendant 
pursued  a  '  common  calling  '  —  i.e.  that  of  a  smith,  or  ferryman, 
or  surgeon,  in  which  he  was  bound  to  attend  all  comers.  But, 
by  the  middle  of  the  fifteenth  century,  for  the  general  '  holding 
out '  implied  in  the  assumption  of  a  common  calling,  the  alter- 
native of  a  'special  assumption,'  or  undertaking,  might  be 
pleaded.  One  or  the  other  was  necessary.''  And  so  we  find 
the  allegations :  assumpsit  super  se,  emprist  sur  lui,  manucejnt, 
and  other  forms,  appearing  in  the  Writs  of  Case.  Now  these 
allegations  do  not,  perhaps,  necessarily  imply  promises ;  but 
they  are  very  near  it.  Perhaps  if  we  say  that  a  man  '  takes 
upon  himself '  to  do  a  thing,  we  do  not  necessarily  allege  that 
he  promises  to  do  it.  But  what  if  we  say  '  he  undertakes '  to 
do  it?  The  difference  is  not  great.  Still,  in  Trespass  on  the 
Case,  the  stress  was  laid  on  the  physical  damage,  rather  than  on 
the  breach  of  undertaking. 

Half   a   century   after   the   full   recognition   of   the   Trespass 

class  of  cases,  we  find  another  model  followed,  viz.  the  Writ  of 

Deceit  on       Deceit.     The  old  Writ  of  Deceit  was  very  techni- 

^^®        cal ;    it   could,   practically,   only  be  used  where  the 

defendant  had  been  guilty  of  trickery  in  legal  proceedings  in  the 

1  Y.B.  22  Ass.  (1348)  94,  pi.  41. 
*  Y.B.  46  Edw.  Ill  (1372)  fo.  19,  pi.  19. 
^Y.B.  43  Edw.  Ill  (1369)  fo.  33,  pl.38. 
<Y.B.  48  Edw.  Ill  (1374)  fo.  6,  pi.  11. 

'  The  proper  title  is:    'Action  on  the  Case  in  the  Nature  of  Trespass.'     But  the 
form  in  the  text  is  the  more  usual. 

«  Y.B.  19  Hen.  VI  (1441)  fo.  49,  pi.  5,  per  Paston,  J. 


138    A  SHORT  HISTORY  OF  ENGLISH   LAW 

King's  Courts.^  But,  before  the  end  of  the  first  half  of  the 
fifteenth  century,  we  get  two  cases,  at  least,  in  which  the  plain- 
tiff was  allowed  to  recover,  because,  although  there  had  been 
no  physical  damage  to  the  plaintiff  or  his  goods,  he  had  suffered 
loss  by  the  deliberate  fraud  of  the  defendant  in  breaking  his 
undertaking.  In  Somertons  Case,  three  times  reported,-  and 
so,  presumably,  regarded  as  of  great  interest,  the  defendant 
had  been  employed  by  the  plaintiff  to  buy  a  manor,  and  had 
■persuaded  some  one  else  to  buy  it  over  the  plaintiff's  head.  In 
•a  slightly  later  case,^  the  defendant  had  agreed  to  sell  the  plain- 
•tiflf  a  manor,  and  subsequently  enfeoffed  a  third  person.  In 
•each  case  the  plaintiff  suffered  damage,  though  not  of  a  physical 
kind.  The  second  case  is  called  a  '  Bill  of  Deceit ' ;  but,  as 
it  was  brought  in  the  King's  Bench,  this  probably  only  meant 
that  the  fiction  of  the  marshal's  custody  was  employed.^  Any 
.w^ay,  these  two  cases  bring  us  a  step  nearer  to  a  law^  of  contract. 

■  We  may  call  them  the  Deceit  or  misfeasance  cases. 

•  Lastly,  we  come  to  the  non-feasance  group.  Here  the  sole 
,  ground  of  alleged  liability  is  the  failure  to  fulfil  a  promise ;  and, 
-Non-  when  this  group  is  established,  we  have  clearly  a 
feasance  jg^^,  q£  simple  contract.  Unfortunately,  at  this  stage, 
"another  and  more  obscure  question  arises.  . 

So  early  as  the  year  1424,  we  find  a  case  which  looks  very 
much  like  one  of  mere  non-feasance.  It  was  an  action  against  a 
mill-maker  for  failing  to  build  a  mill  according  to  his  promise.^ 
The  action  seems  to  have  been  allowed,  with  some  hesitation. 
Professor  Ames  strongly    urges  that  this  and  a  slightly   later 

•  case  to  the  same  effect  ^  were  premature  freaks,  due  to  the  idiosyn- 

■  crasy  of  a  particular  judge,  and  that  it  is  not  till  the  very  end 
of  the  sixteenth  century,  that  we  get  a  definite  legal  recognition 

,  of  the  truth  that  a  man  may  be  just  as  much  harmed  by  his 
.  neighbour's  mere  non-fulfilment  of  his  promise,  as  by  his  active 
fraud  or  deceit.^  But  by  this  time  it  had  been  perceived,  that 
•to  allow  an  action  to  be  brought  for  the  non-fulfilment  of  any 
.  promise  would  be  to  open  the  door  too  wide ;   and  accordingly  we 

•  Fitzhorbert,  Natura  Brevium,  95  E. 

«  Y.B.  11  Hen.  VI  (1433)  fo.  18,  pi.  10;    fo.  24.  pi.  1  ;    fo.  55,  pi.  26. 

3  Y.B.  20  Hen.  VI  (1442)  fo.  34,  pi.  4.  *  Post,  p.  171. 

'  Y.B.  3  Hon.  VI  (1424)  fo.  36,  pi.  33. 

«Y.B.  14  Hen.  VI  (1435)  fo.  18.  pi.  58. 

'  Select  Essays  in  Anglo-American  Legal  History,  III,  270. 


CONTRACT  AND   TORT  139 

find,  that  only  those  promises_were  actionable  which  had  been 
given  in  return  for  some  recompense  recei\ed  b}'  the  promisor, 
or  some  detriment  suffered  by  the  promisee. 

This  is  the  famous  doctrine  of  '  consideration,'  without 
which  no  simple  contract  is  valid.  How  it  exactly  arose,  we  do 
Considera-  "ot  know.  The  writer  suggests  that  it  is  a  com- 
^^°°^  pound  doctrine,  of  which  the  positive  side  (recompense 

or  benefit  to  the  promisor)  is  a  reflection  from  the  original 
character  of  the  older  action  of  Debt,  while  the  negative  side 
(detriment  to  the  promisee)  is  merely  a  slight  ante-dating  of 
the  damage  which  was  necessary  to  support  an  action  of  '  Case .'  The 
action  of  Debt,  as  we  have  seen,  was,  originally,  an  action 
to  recover  something  of  the  plaintiff's  which  had  been  bailed 
to  the  defendant  (quid  pro  quo) .  Strictly  speaking,  the  damage  to 
the  plaintiff'  should  have  been  that  which  he  suffered  by  breach 
of  the  defendant's  promise ;  but  it  is  not  difficult  to  see  how  this 
requirement  could  be  changed  into  damage  suffered  in  exchange 
for  the  promise.  ^Yhateve^  be  the  explanation,  the  doctrine 
itself  was  clearly  known  by  the  beginning  of  the  sixteenth  cen- 
tury ;  for  it  was  made  the  basis  of  an  elaborate  discussion  in  the 
Dialogues  between  a  Doctor  of  Divinity  and  a  Student  of  the  Laws 
of  England,  published  in  1523,  and  attributed  to  St.  Germain. 
The  parties  are  debating  the  respective  merits  of  the  Canon  and 
English  Laws ;  and  they  come  into  sharp  conflict  over  the  theory 
of  the  simple  contract.  The  Doctor  wishes  to  make  the  enforce- 
ability of  a  contract  depend  on  the  occasion  on  which  it  was 
made,  and  the  intention  of  the  promisor.^  This  is  the  old  doc- 
trine of  causae,  with  a  new  touch  of  casuistry  added.  The  Stu- 
dent maintains  the  doctrine  of  English  Law;  though,  oddly 
enough,  he  does  not,  in  that  place,  employ  the  word  'considera- 
tion.' Ex  nudo  pacto  nan  oritur  actio,  he  alleges,  with  a  trium- 
phant quotation  from  the  Institutes ;  but  then  he  goes  on  to 
explain,  that  a  '  nude  contract '  is  one  made  without  any  '  rec- 
ompence '  appointed  for  it  —  an  explanation  which  would 
have  sounded  strange  to  a  Roman  lawyer.  It  is  the  Doctor 
who  uses  the  word  'consideration'  in  the  chapter;  and,  with 
him,  it  obviously  means  merely  'motive'  or  'object,'  in  which 
sense  it  is  also  adopted  by  the  Student  in  another  passage,^ 
when  he  says  that  the  'consideration'  of  the  Statute  of  Fines 

1  Dialogues,  II,  cap.  25.  '  Dialogues,  I,  cap.  26. 


140    A    SHORT  HISTORY  OF  ENGLISH  LAW 

was  to  ensure  the  certainty  of  titles.  But  the  word  had  become 
appropriate  to  the  new  doctrine  by  the  middle  of  the  sixteenth 
century,  and  appears  in  the  Reports  shortly  afterwards.^  By 
that  time,  it  was  admitted  that  the  consideration  to  support  a 
simple  promise  might  itself  be  a  promise ;  -  and  so  the  purehy 
executory  contract  became  a  recognized  institution.  After 
that,  it  was  not  difficult  to  clear  away  the  surviving  vestiges  of 
its  origin,  and  allow  it  to  appear  as  a  substantive  and  distinct 
institution.  In  1520,^  the  Court  had  allowed  Assumpsit  to  be 
brought  against  executors,  in  spite  of  the  fact  that  it  was  tlien, 
in  form,  clearly  an  action  of  Tort ;  but  this  decision  had  been 
scoffed  at  by  Fitzherbert.^  In  1557,^  however,  and  again  in 
1611,^  the  Court  allowed  Assumpsit  against  executors,  and  thus 
removed  a  substantial  grievance ;  for,  as  has  been  pointed  out, 
Debt  could  not  be  maintained  against  them  where  the  deceased 
could  have  'waged  his  law.'  Finally,  it  was  resolved,  'm_Slade's 
Case,''  that  'every  contract  executor^'  imports  in  itself  an 
assumpsit  ' ;  and  thus  the  necessity  of  suing  in  Debt,^  which 
let  m  the  'wager  of  law,'  was  abolished,  practically  in  all  cases. 
This  case  gave  rise  to  the  well-known  sub-division  of  contractual 
actions  into  indebitatus  assumpsit  (where  the  defendant  was  really 
liable  apart  from  express  promise,  e.g.  for  rent),  and  social 
assumpsit,  where  the  promise  was  the  true  cause  of  action. 
Thus  freed  entirely  from  its  early  restrictions,  the  Action  of 
Assumpsit  took  its  place  in  the  legal  armoury  as  the  typical 
action  of  contract ;  though,  as  we  have  seen,  it  was,  historically, 
an  action  founded  on  a  tort.  Thus  it  became  possible,  also, 
to  classify  personal  actions  into  actions  of  Contract  and  actions 
of  Tort. 

It  must  not  be  supposed,  however,  that  the  Action  of  Case 
had  exhausted  its  possibilities  when  it  had  given  birth  to  Assump- 
sit ;    for,  though,  for  a  long  time,  the  action  founded  on  Deceit 

1  Jocelyn  v.  Skelton  (1558)  Benloe,  57  ;  Gill  v.  Harewood  (1587)  1  Leon.  61. 

*  Peske  V.  Redman  (1555)  Dyer,  113.  The  point  was  discussed  in  Wichals  v.  Johns 
(1599)  Cro.  Eliz.  703. 

^Cleymond  v.  Vincent,  Y.B.  12  Hen.  VIII,  fo.  11,  pi.  3. 

<Y.B.  27  Hen.  VIII  (15.35)  fo.  23,  pi.  21. 

'  Norwood  V.  Read,  Plowd.   180. 

«  Pinchon's  Case,  9  Rep.  86b.  '  (1603)  4  Rep.  92b. 

*  This  necessity  was  not  merely  due  to  the  absence  of  an  express  promise,  but 
also  to  the  old  theory  that  a  man  who  had  a  'higher'  remedy,  might  not  resort  to  a 
lower. 


CONTRACT   AND   TORT  141 

lingered  on  only  as  a  special  and  peculiar  remedy  for  breach 
of  warranty/  we  soon  find  a  new  and  highly  popular  form  of 
Case  in  the  variety  known  as  trover. 

As  we  have  seen,  the  Action  of  Detinue  had  jts  drawbacks ; 
for,  though  it  was  no  longer  restricted  to  the  case  of  the  bailee, 
it  was  obviously  jinsuitable  when  the  defendant,  though  willing 
to  give  up  the  chattel,  liad  wilfully  or  carelessly  damaged  it,  or 
where  he  had  parted  witli  tlie  possession  of  it.  True,  Trespass 
might  have  come  in  here,  if  the  original  taking  had  been  unlawful ; 
but,  if  the  plaintiff  had,  in  fact,  parted  voluntarily,  or,  perhaps, 
unconsciously,  with  his  chattel.  Trespass,  which  implies  at  least 
some  degree  of  violence,  was  unsuitable.  JMoreover,  Trespass 
itself  was  risky  ;  for  the  unsuccessful  party  was,  at  least  in  theory, 
liable  to  pay  a  fine  to  the  King.  Again,  Detinue  suffered  from 
the  drawback  of  being  open  to  the  antiquated  '  wager  of  law.' 

Accordingly,  we  are  not  surprised  to  find  that,  before  the  end 

of  the  fifteenth  century,-  the  Court  considered  that  the  Action 

of  Case  might  well  be  held  to  cover  a  bailee  who 

Trover  .  . 

had  wilfully  misused  the  chattel  bailed  to  him ; 
and  that,  a  few  years  later ,^  the  new  action  was  stretched  to 
cover  a  case  in  which  he  had  sold  it.  The  former  case  was 
very  like  Trespass ;  the  latter,  luckily  for  the  defendant,  just 
escaped  being  larceny.  By  Coke's  time,^  the  pleaders  had 
agreed  upon  a  form  which  alleged  that  the  plaintiff*  '  casually 
lost  the  chattel  from  his  hands  and  possession^  and  afterwards 
...  it  came  to  the  hands  and  possession  of  the  defendant  by 
finding  {trojierX,  w'ho  nevertheless  put  and  converted  it  to  his 
ownjise,'  This  form  anticipated  and  guarded  against  two  ob- 
jections by  the  defendant,  viz.  (i)  '  I  did  not  take  it '  (Tres- 
pass), and  (ii)  'I  have  not  got  it'  (Detinue).  But,  later  on, 
these  fine  distinctions  were  ignored ;  and,  in  3LG2.Z,JjXLYer_was 
allowed  as  a  substitute  for  Trespass,^  where  the  defendant  took 
the  chattel  in  the  presence  of  the  plaintiff,  and,  in  1674,  for 
Detinue,*"  where  there  was  a  mere  demand  and  refusal.  Before 
this  time,  moreover.  Detinue  had  been  held  to  cover  cases  in 

1  Stuart  V.  Wilkins  (1778)   1  Doug.  18. 

2  Y.B.  18  Edw.  IV  (1479)  fo.  23,  pi.  5. 

3  (1510)  Keil.  160,  pi.  2. 

*  Entries,  37d,  40c,  41d,  &c. 

^  Kynaston  v.  Moore,  Cro.  Car.  89. 

^Sykes  v.  Walls,  3  Keb.  382  (3). 


142    A   SHORT   HISTORY  OF  ENGLISH  LAW 

which  there  had  been  no  bailment.  This  was  regarded  as  a 
novelty  in  1455;^  but  by  1510  Detinue  sur  trover  had^jtaken 
its  place  as  common  form  alongside  Detinue  sur  bailment.^ 
Thus  the  three  forms  of  action  largely  overlapped,  as  alternative 
actions  of  Tort;  though  there  were  still  cases  which  could  only 
be  brought  under  one  of  them.  Their  later  history  may  be 
quickly  disposed  of.  In  1833,^  the  abolition  of  '  wager  of  law  ' 
caused  a  revival  of  Detinue,  which  was  fostered  by  a  judicious 
alternation  of  the  rules  of  pleading  in  the  action.  In  1852,  the 
Common  Law  Procedure  Act  ^  rendered  allegations  of  bailment 
and  finding  unnecessary,  whilst  they  had  long  been  '  untrav- 
ersable  —  i.e.  undeniable ;  and  thus  the  essence  of  the  action  of 
Trover,  viz.  the  conversion  to  the  use  of  the  defendant,  became 
more  clear,  and  the  name  conversion  is  now  more  common  tlian 
Trover,  whilst  the  action,  in  spite  of  some  difficulties,  tends  more 
and  more  to  be  regarded  as  one  of  Tort.  Of  course,  the  necessity 
for  choosing  a  special  form  of  action  has  long  since  disappeared. 

Independently  of  the  desire  to  protect  chattels,  many  new 
forms  of  Tort  made  their  appearance  during  this  period,  and 
have  survived  to  the  present  day.  Various  causes  are  to  be 
assigned  for  their  introduction,  among  which  the  most  promi- 
nent are :  (i)  the  necessity  for  abolishing  some  of  the  technical 
restrictions  of  the  older  writs ;  (ii)  the  absorption  of  other  juris- 
dictions by  the  King's  Courts ;  and  (iii)  the  passing  of  legislation 
intended  to  meet  the  exigencies  of  special  occasions.  Of  these 
in  their  order. 

The  new  forms  of  Tort  which  came  into  existence  as  varieties 
of  the  action  of  Case,  because  the  older  writs  dealing  with  similar 
Malicious  offences  were  unavailable,  were,  notably,  INIalicious 
Prosecution  Prosecution  and  Nuisance.  Malicious  Prosecution 
was  an  adaptation  of  the  old  Writ  of  Conspiracy,  which  was  itself 
based  on  a  statute  and  ordinance  of  the  years  1300  and  1305 
respectively.^  These  enactments,  however,  only  applied  to 
cases  where  '  two,  three,  or  more  persons  of  malice  and  covin  do 
conspire  and  devise  to  indict  any  person  falsely,  and  afterwards 
he  who  is  so  indicted  is  acquitted.'  The  old  writ  was,  conse- 
quently, confined  to  such  cases ;   and  subsequent  judicial  rulings 

lY.B.  33  Hen.  VI,  fo.  26,  pi.  12. 

^  Liber  Jntralionum  (cd.  1546)  fo.  Ixxxiv  (B). 

'Civil  Procedure  Act,    1833,   s.    13.  ♦  S.  49. 

'28  Edw.  I,  St.  Ill,  c.  10;   33  Edw.  I,  st.  II. 


CONTRACT  AND   TORT  143 

seem  to  have  restricted  it  still  further,  to  cases  of  false  indict- 
ments for  treason  or  felony,  whereby  the  accused's  life  was  en- 
dangered.^ Obviously,  there  were  many  other  cases  in  which 
oppression  could  be  used,  not  merely  by  a  group  of  persons  acting 
together,  but  even  by  a  single  unscrupulous  person,  through  the 
medium  of  baseless  prosecutions.  And  so,  after  the  Church 
Courts  had  tried  to  acquire  jurisdiction  in  such  cases  through 
proceedings  for  defamation,-  we  find  in  the  King's  Courts,  by  the 
end  of  the  fifteenth  century,^  an  action  of  Case  in  the  Nature  of 
Conspiracy,  which  applied  against  single  individuals  and  on 
false  indictments  for  mere  misdemeanours.  This  new  form  of 
action  gradually  acquired  the  name  of  Malicious  Prosecution,^ 
and  was  further  extended  to  cover  the  malicious  procuring  of 
search  warrants  against  the  plaintiff.^  It  should  be  observed, 
however,  that,  unlike  strict  Conspiracy,  the  gist  of _  the  action 
of  Malicious  Prosecution  is  damage  to  the  plaintiff,  not  the 
mere  conspiring  of  the  defendants ;  though,  if  a  false  and  mali- 
cious prosecution  is  brought,  damage  to  the  party  prosecuted 
will  be  presumed.  Apparently,  though  the  closely  related 
Writ  of  Champerty  (against  persons  buying  shares  in  lawsuits 
with  a  view  of  aiding  in  carrying  them  on)  retained  the  form 
given  to  it  by  statute,^  the  Action  of  Maintenance  (against  per- 
sons taking  part  in  lawsuits  in  which  they  had  no  interest) 
was  also  a  typical  example  of  Case ;  being  an  enlargement  of  the 
narrower  statutory  remedy  against  royal  officials.^ 

Equally  clear  is  the  widely  popular  Action  of  Nuisance, 
devised  to  protect  immovable  rights  of  all  kinds  from  physical 
„  .  disturbance.     There  was  an  old  Assise  of  Nuisance ; 

but  this,  as  a  real  action,  could  only  be  used  by  and 
against  freeholders,  while  the  action  of  Case  framed  upon  the 
analogy  of  it  was  open  to  all  persons  having  an  interest  in  posses- 

1  Skinner  v.  Gunton  (1669)  1  Wms.  Saund.  228. 

«  1  Edw.  Ill  (1327)  c.  11. 

3Y.B.  11  Hen.  VII  (1496)  fo.  25  pi.  7. 

*  The  transition  appears  clearly  in  the  leading  case  of  Savile  v.  Roberts  (1698) 
1  Salk.  13. 

6  Windham  v.  Clere  (1589)  Cro.  Eliz.  130. 

*  33  Edw.  I  (1305)  st.  Ill,  cap.  2.  Champerty  had  been  made  a  criminal  offence 
by  3  Edw.  I  (1275),  c.  25;  13  Edw.  I,  st.  I  (1285)  c.  49;  28  Edw.  I,  st.  Ill  (1300) 
c.  11. 

'  33  Edw.  I  (1305),  cc.  28,  33.  (The  latter  statute  also  made  Maintenance  a 
criminal  offence.)  The  form  of  the  writ  is  not,  apparently,  given  in  Fitzherbert's 
Natura  Brevium. 


144     A   SHORT  HISTORY  OF  ENGLISH  LAW 

sion,  against  all  persons  causing  a  physical  injury  to  their  land. 
A  curious  and  not  altogether  commendable  survival  of  the 
right  of  self-help  marks  the  transition.  Under  the  old  Assise 
of  Nuisance,  and  the  still  older  Writ  of  Quod  Permittat,  the 
successful  plaintiff  was  entitled  to  have  the  nuisance  '  abated,' 
or.  taken  away  by  the  sheriff  and  the  power  of  the  county.^ 
The  judgment  in  the  action  of  Case  in  the  Nature  of  Nuisance 
was  merely  for  damages ;  but  the  complainant  was,  apparently, 
permitted  to  abate  the  nuisance  himself,  and  the  right  survives 
to  the  present  day,  though  the  exercise  of  it  has  been  largely 
superseded  by  the  issue  of  mandatory  injunctions.- 

The  second  group  of  new  torts  produced  in  this  period  was 
that  which  sprang  from  the  absorption  by  the  King's  Courts  of 
other  jurisdictions.  Of  this  group  by  far  the  best  example  is 
Defamation. 

As  is  well  known.  Defamation  is  of  two  kinds,  viz.  libeLCsyjiere 
the  defamatory  publication  is  printed  or  written,  or  is  contained 
Defamation  ^^  pictures  or  other  permanent  record),  and  sland.er, 
where  the  defamation  is  by  spoken  words  only. 
There  are  many  legal  differences  between  the  two.  For  instance, 
libel  may  be  punished  both  criminally  and  civilly ;  and,  even 
in  the  civil  action,  no  special  damage  need  be  alleged,  while,  in 
the  criminal  proceedings,  it  need  not  always  be  proved  that  the 
defamatory  matter  was  published  to  a  third  person.  On  the 
other  hand,  slander,  except  in  certain  cases,  is  not  actionable 
unless  special  damage  is  shown ;  and  it  is  never  punishable 
criminally.  Moreover,  the  period  for  bringing  an  action  of 
Slander,  where  the  words  are  '  actionable  ;p.er  se,'  is  limited  to  two 
years  after  the  commission  of  the  oft'ence  ;  while  libel  and  ordinary 
slander  can  be  pursued,  even  civilly,  at  any  time  within  six 
years  after  the  commission  of  the  offence,  or,  in  the  case  of  slander, 
after  the  occurrence  of  the  damage. 

It  is  natural  to  surmise,  that  such  differences  of  character 
proceed  from  differences  of  historical  origin ;  and  we  find,  as  a 
fact,  that  slander  and  libel,  as  legal  offences,  have  had  different 
sources. 

It  seems  clear  that  cases  of  oral  slander  were,  in  early  times, 

'  Blackstone,  Comm.  Ill,  222.  The  forms  of  the  Assise  and  the  Quod  Permittat 
are  given  in  Fitzherbert,  op.  cit.,  183,  K;  124  H.  See  remarks  of  Cresswell,  J., 
in  Battishill  v.  Reed  (1856)  18  C.B.,  at  p.  715.  , 

^  Lane  v.  Capscy  [1891]  3  Ch.  411. 


'     CONTRACT  AND   TORT  145 

matter  for  the  local  moots.  In  the  records  of  feudal  courts 
recently  published  by  the  Selden  Society/  we  find 
precedents  and  forms  in  slander  going  back  to  the 
thirteenth  century ;  and  it  can  hardly  be  doubted  that  this  branch 
of  feudal  jurisdiction  resulted  from  the  absorption  of  the  popular 
authority  of  the  leet  court  of  the  Hundred.  In  the  cases  given 
in  the  publications  referred  to,  the  charges  of  slander  are  fre- 
quently supplementary  to  charges  of  trespass  and  other  offences 
against  good  order ;  ^  but  there  seems  little  reason  to  doubt  that 
slander  alone,  at  any  rate  if  damage  followed,  was  a  generally 
recognized  cause  of  action,^  though,  probably,  in  such  matters, 
each  court  had  its  own  rules. 

With  the  decay  of  the  feudal  courts,  previously  referred  to,^ 
the  jurisdiction  in  slander  appears  to  have  passed,  not  at  first 
to  the  King's  Courts,  but  to  the  Courts  of  the  Church.  A  clause 
of  the  statute  of  1315,^  commonly  known  as  Articuli  Cleri, 
fully  recognizes  the  authority  of  the  bishop  in  defamation ;  and 
we  find  the  King's  Bench,  in  the  year  1498,^  declaring  that 
actions  for  slander  are  matter  for  the  spiritual  tribunals.  It  is 
not  until  after  the  crucial  years  of  the  Reformation,  viz.  in  the 
year  1536,^  that  we  find  an  action  of  slander  reported  in  the 
King's  Courts;*  and,  as  is  well  known,  the  jurisdiction  of 
the  ecclesiastical  tribunals  in  defamation  lingered  on,  though 
with  diminished  vigour,  until  1855.^  From  the  middle  of  the 
sixteenth  century,  however,  it  is  clear  that  the  action  of  Case  for 
spoken  words  becomes  increasingly  frequent  in  the  King's 
Courts ;  and,  in  the  year  1647,  a  special  text-book  on  the  subject 
was  published  by  John  March,  the  reporter,  and  attained  con- 
siderable favour.  Before  the  end  of  our  present  period,  the 
action  of  Slander  had  virtually  assumed  its  modern  form.  In 
this  example,  as  elsewhere,  it  may  well  be,  that  the  action 
of  Case  was  framed  on  an  older  model ;  and  we  think,  naturally, 

1  Select  Pleas  in  Manorial  .  .  .  Courts  (Maitland)  S.S.  Vol.  2 ;  The  Court 
Baron  (Maitland  and  Baildon),  S.S.  Vol.  4.  The  former  volume  is  a  record  of 
actual  cases ;    the  latter  a  collection  of  court  forms. 

2  Court  Baron,  28,  30,  &c.     (The  language  is  picturesque.) 

3  Ibid.,  40,  48 ;    Manorial  Courts,  19,  36,  82,  &c.  *  Ante,  pp.  71-73. 
6  9  Edw.  II,  St.  I,  c.  4.                     6  Y.B.  12  Hen.  VII,  fo.  22,  pi.  2. 

^  Anon.     Dyer,  19a. 

^  There  was,  however,  a  disposition  earlier  to  check  excess  of  ecclesiastical 
jurisdiction,  e.g.  where  the  Church  courts  entertained  actions  for  defamation  against 
preferrers  of  indictments  (1  Edw.  Ill  (1327)  c.  11). 

'  Ecclesiastical  Courts  Acts  (18  &19  Vic.  c.  41). 


146    A   SHORT  HISTORY  OF  ENGLISH  LAW 

in  this  connection,  of  the  statutory  offence  of  Scandalum  Magna- 
tum,  which  appears  in  the  Statute  Book  on  several  occasions, 
from  1275  to  1558.^  But,  if  we  look  at  these  statutes,  we 
shall  find  that  they  are  of  a  purely  criminal  character;  and  it 
is  not  easy  to  see  how  any  writ  of  Case  could  be  framed  upon 
them. 

Very  different  was  the  history  of  libel.  Probably,  in  the  days 
before  the  invention  of  printing,  there  were  not  many  oppor- 
tunities of  committing  this  offence ;  though  there 
seems  little  reason  to  doubt  that  the  ecclesiastical 
courts,  even  then,  entertained  suits  for  written  defamation. 
But  the  appearance  of  the  printing  press,  as  has  been  pointed  out 
in  another  connection,  brought  the  subject  into  prominence ; 
and  the  Court  of  Star  Chamber,  though  it  declined  to  trouble 
itself  about  slander,-  soon  became  an  active  centre  of  criminal 
prosecutions  for  libel.  Apparently,  however,  the  jurisdiction 
of  the  Star  Chamber  did  not  exclude  the  more  open  jurisdiction 
of  the  King's  Bench ;  for,  in  the  well-known  Case  of  Scandalous 
Libels,^  which  came  before  the  former  tribunal  in  the  year  1605, 
it  was  resolved,  that  '  a  libeller  shall  be  punished  either  by 
indictment  at  the  common  law,  or  by  bill,  if  he  deny  it,  or  ore 
tenus  on  his  confession,  in  the  Star  Chamber.'  The  strongly 
criminal  character  of  the  proceedings  in  libel  at  that  time  is 
also  emphasized  by  the  ruling,  that  the  truth  of  the  libel  is 
no  justification  for  its  issue ;  while  a  slightly  later  case  in  the 
Star  Chamber  ^  added  the  well-known  distinction^^ between 
criminal  and  civil  libel,  viz.  that  the  former  may  be  committed 
without  publication  to  a  third  party. 

It  appears,  however,  that  the  Star  Chamber  itself,  at  any 
rate  in  its  later  years,  adopted  the  practice  of  awarding  damages 
to  the  party  injured  by  a  libel,  as  well  as  punishment  for  the 
criminal  offence;  ^  and  this  practice  naturally  led  to  the  growth 
of  the  idea  that  libel  might  be  treated  also  as  a  civil  offence. 
References  to  a  possible  action  of  Case  for  libel  appear  in  the 

>3  Edw.  1  (1275)  c.  34;  2  Ric.  II,  st.  I  (1378)  c.  5 ;  12  Ric.  II  (1388)  c.  11; 
1  &  2  Ph.  &  M.  (1554)  c.  3;  1  Eliz.  (1558)  c.  6. 

'  Select  Cases  .  .  .  in  the  Star  Chamber  (SS.  vol.  16)  28-45. 

'  5  Rep.  124b. 

■•  Edwardcs  v.  Wootton  (1007)  reported  in  Hawardc's  Cases  in  the  Star  Chamber, 
ed.  by  Baildon,  and  privately  printed,  343-344. 

^  Edwardes  v.  Wootton,  ubi  sup.;  and  Lake's  Case  (1619),  reported  in  Calendar 
oj  State  Papers  (Dom.)  Ill,  19,  21. 


CONTRACT   AND   TORT  147 

Reports  from  the  beginning  of  the  seventeenth  century ;  ^  and, 
on  the  aboHtion  of  the  Court  of  Star  Chamber  by  the  Long 
Parhament  in  1G41,  civil  actions  for  Hbel  begin,  though  far 
more  slowly  than  might  have  been  expected,  to  be  reported.^  A 
marked  survival  of  the  criminal  origin  of  libel  is  to  be  found 
in  the  rule  that,  to  succeed,  even  in  a  civil  action,  no  actual 
damage  need  be  proved ;  though  the  action  is,  historically,  one 
of  Case. 

Finally,  more  than  one  new  tort  was  created  by  express  statute 
statutory  during  the  period  at  present  under  review.  Of  these, 
Torts  some  were  of  little  permanent  importance ;    such  as 

the  offences  created  by  the  statute  of  1400,^  which  gave  a  defend- 
ant wrongfully  sued  in  the  Admiralty  Court  an  action  against 
his  adversary,  and  another  of  the  year  ISSl,"^  which  gave  a 
similar  remedy  to  a  person  aggrieved  by  the  irregularity  of  an 
ecclesiastical  official.  But  the  offences  created  by  the  series  of 
Labour  statutes  and  ordinances  ^  which  followed  on  the  occurrence 
of  the  Black  Death  and  the  Peasants'  Revolt,  have  left  a  per- 
manent mark  oji  our  law.  It  was  part  of  the  policy  of  that  code 
to  compel  all  persons  under  a  certain  rank  to  serve  any  one  who 
was  willing  to  employ  them,  at  the  statutory  rate  of  wages ; 
and  severe  penalties  were  imposed  upon  a  servant  who  refused 
to  serve  or  departed  from  his  service.  Naturally,  the  Courts 
regarded  any  attempt  to  seduce  a  servant  from  his  employment 
as  violating  the  spirit  of  the  Acts ;  and,  accordingly,  the  action 
of  Case  for  the_ seduction  or  harbouring  of  a  servant  made  its 
way  into-Jthe  books.  The  form  of  the  writ  is  given  by  Fitz- 
herbert,^  who  expressly  bases  it  on  the  statute  of  1349,  and  says 
that  it  lies  against  both  enticer  and  servant.  By  a  well-meaning, 
but  rather  clumsy  analogy,  this  action  was,  later  on,  extended  to 
cover  the  case  of  debauching  a  woman ;  but  the  many  anomalies 
of  that  form  of  action  show  how  ill-fitted  is  the  machinery  to 
achieve  its  object.  The  Statutes  of  Labourers,  and  their  amend- 
ment in  the  reign  of  Elizabeth,  ultimately  gave  birth  to  another 
important  branch  of  the  Law  of  Tort,  viz.  the  actions  for  procur- 

^  Barrow  v.  Lewellin  (1616)  Hob.  62;  Lake  v.  Hatton  (1618)  ibid.,  252;  Hicks' 
Case  (1619)   ibid.,  215. 

2  One  of  the  earliest  is  Lake  v.  King  (1668)  1  Wms.  Saund.  131,  b,  on  Parlia- 
mentary privilege. 

3  2  Hen.  IV,  c.  11.  ^23  Hen.  VIII,  c.  9,  s.  3. 

'  23  Edw.  Ill  (1349)  ;    25  Edw.  Ill,  st.  II  (1351) ;   34  Edw.  Ill  (1360)  cc.  9-11. 
« Natura  Brevium,  167-168. 


148    A   SHORT  HISTORY  OF  ENGLISH  LAW 

ing  breach  of  contract,  and  civil  conspiracy.  But  this  develop- 
ment belongs  to  a  later  period.  It  is  not  diflficult  to  see  how  a 
social  upheaval  such  as  that  of  the  late  fourteenth  century, 
which  virtually  abolished  serfdom  and  profoundly  affected  the 
policy  of  the  State,  would  naturally  be  reflected  in  a  legal  system 
which  was,  above  all  things,  a  mirror  of  the  ideas  of  the  ruling 
classes. 


CHAPTER  XI 
CRIMINAL  LAW  AND  PROCEDURE 

THERE  is  not  much  to  be  said  about  the  substantive  Law 
of  Crime  in  this  period.  The  Law  of  Treason  was  codi- 
fied in  the  year  1352  by  the  great  Statute  of  Treasons/ 
which  is  still  the  foundation  of  the  law  on  the  subject ;  for, 
though  a  good  many  new  treasons  were  introduced  in  the  reign 
of  Henry  VIII,  they  were,  together  with  most  of  the  new  felonies 
created  by  the  Reformation  statutes,  swept  away  on  the  accession 
of  his  son.-  The  progress  of  the  nation  in  wealth  and  refinement, 
however,  naturally  brought  with  it  an  increase  in  the  number  of 
crimes,  as  the  old  definition  of  offences  became  inadequate. 
.  Among  the  new  crimes  may  be  mentioned  that  of 
maiming  by  cutting  out  the  eyes  or  tongue,  made  a 
felony  by  a  statute  of  1403,^  the  unauthorized  multiplication  of 
gold  and  silver,  by  the  same  statute,"*  the  recognition  of  embezzle- 
ment and  obtaining  goods  by  false  pretences  as  but  variations 
of  the  ancient  crime  of  theft, ^  unnatural  offences,^  forgery,^ 
and  bigamy  (in  the  modern  sense)  .^  Witchcraft  with  evil 
intent  was  made  felony  by  statute  in  1541 ;  ^  and  this  statutory 
recognition  of  one  of  the  very  oldest  of  social  offences  looks  some- 
what reactionary.  It  may  well  be,  however,  that  a  regular  prose- 
cution before  the  King's  judges  rescued  many  a  wretched  outcast 
from  the  terrors  of  Lynch  law. 

The  really  important  changes  in  criminal  justice  during  this 

1  25  Edw.  Ill,  St.  V.  c.  2. 

^  1  Edw.  VI  (1547)  c.  12,  s.  2.  (It  must  be  admitted,  however,  that  even  this 
statute,  in  its  later  sections,  introduced  or  continued  one  or  two  newfangled  treasons, 
and  was  followed  by  the  23  Eliz.  (1581)  c.  1.) 

3  5  Hen.  IV,  cc.  4,  5.  *  Ihid. 

6  21  Hen.  VIII  (1529)  c.  7;  33  Hen.  VIII  (1541)  c.  1.  But  obtaining  goods 
by  false  pretences  was  not  made  felony ;  and  embezzlement  was  not  felonious  unless 
it  amounted  to  fortv  shillings. 

«  25  Hen.  VIII  (1533)  c.  3. 

'  5  Eliz.  (1562)  c.  14,  s.  8  (felony  on  second  offence ;  but  no  corruption  of  blood). 

«  1  Jac.  I  (1604)  c.  11. 

s  33  Hen.  VIII,  c.  8;   succeeded  by  5  Eliz.  (1562)  c.  16;    1  Jac.  I  (1603)  c.  12, 


150    A  SHORT   HISTORY   OF   ENGLISH  LAW 

period  are,  however,  not  the  new  crimes  introduced  by  statute, 
but  the  alterations  in  classification  and  procedure  brought 
about  by  the  growth  in  importance  of  the  jurisdiction  of  the 
Justices  of  the  Peace,  and  the  virtual  abolitions  of  '  appeals ' 
and  clerical  privileges. 

All  students  of  English  Constitutional  History  will  be  aware, 
that,  after  a  tentative  introduction  as  *  Conservators '  at  the 
end  of  the  thirteenth  century,  the  Justices  of  the  Peace  were 
definitely  accepted  and  organized  as  part  of  the  nor- 
the^Peict  ™^'  scheme  of  government  in  the  fourteenth.  The  great 
statute  of  1360  ^  recognizes  that  dual  character  of  the 
Justices'  office  with  which  we  are  now  familiar — the  magisterial 
and  the  judicial.  The  Justices  are  to  have  power  to  '  restrain  ' 
offenders,  rioters,  and  other  barrators  ;  they  are  to  make  enquiries 
and  arrest  and  imprison  all  suspicious  persons ;  these,  and  the 
numerous  duties  imposed  upon  them  by  the  Statutes  of  Labour- 
ers, previously  alluded  to,  belong  to  them  as  magistrates  or 
keepers  of  the  peace.  But,  in  their  judicial  capacity,  they 
may  '  hear  and  determine  at  the  King's  suit  all  manner  of  felonies 
and  trespasses  done  in  the  same  county.'  A  slightly  earlier 
statute^  had  already  established  the  General  or  Quarter  Sessions 
of  the  Justices  as  a  regular  institution.  A  statute  of  1483^  con- 
ferred upon  the  Justices  the  important  power  of  granting  bail ; 
and,  though  this  power  was  somewhat  restricted  by  a  later 
statute,^  yet  the  last  Act,  and  its  amendment  ^  in  the  following 
year,  by  directing  the  Justices  to  examine  the  accused  and 
transmit  the  information  of  his  accusers  to  the  next  gaol-delivery, 
really  regularized  and  strengthened  the  magisterial  side  of  the 
Justices'  powers.  Two  books  dealing  with  the  jurisdiction  of  the 
Justices  of  the  Peace  were  published  in  this  period,  and  point 
to  a  growth  of  interest  in  the  subject.  These  are  L'Ofice  et 
Audhorite  de  Justices  de  Peace,  a  posthumous  work  attributed 
to  Sir  Anthony  Fitzherbert,  and  published  with  '  enlargements  ' 
by  Crompton  in  1583,^  and  Eirenarcha,  or  the  Office  of  the  Justices 
of  the  Peace,  by  William  Lambard,  published  in  1619 ;  and  they 
are  of  great  value  for  a  study  of  criminal  procedure  during  this 
period. 

'  34  Edw.  Ill,  c.  1.  '25  Edw.  Ill,  st.  II  (1351)  c.  7.  M  Rio.  Ill,  c.  3. 

<  1  &  2  Ph.  &  M.  (1554)  c.  13.  »2  &  3  Ph.  &  M.  (LVw)  c  10. 

'  There  is  said  to  be  an  earlier  edition  extant;  but  the  author  lias  not  seen  a 
copy  of  it. 


CRIMINAL  LAW  AND   PROCEDURE     151 


The  first  thing  that  we  note  from  them  is,  that  an  important 
distinction  is  growing  up  between  those  crimes  which  are  punish- 
.  able  with  deatli,  forfeiture  of  goods  and  lands,  and 

and  corruption  of  blood,  and  a  newer  class  of  offences, 

respasses  j;j-^Qg^}y  statutory,  for  which  are  prescribed  merely  fine 
and  imprisonment.  It  is  possible,  by  a  reference  to  the  valuable 
collection  of  indictments  given  as  a  supplement  to  Fitzherbert's 
book,  to  form  a  tolerably  accurate  idea  of  how  this  classification 
stood  when  his  work  was  published,  i.e.  it  must  be  remembered, 
not  in  the  author's  lifetime,  but  in  1583.^  According  to  these 
forms,  the  classification  of  crimes  in  the  last  quarter  of  the  six- 
teenth century  would  be  somewhat  as  follows :  — 


Treasons  and  Felonies 

High  Treason 

Rebellion 

Counterfeiting  Letters  Patent 

False  Coining 

Clipping  of  gold  coin 

Murder 

Homicide 

Arson 

Bm-glary 

Larceny  above  12  pence 

Purse-cutting 

Rape 

Unnatural  Crime 

Conniving  at  escape  of  felon 

Witchcraft  resulting  in  death 

Maiming 

Suicide 


Trespasses  ('Misdemeanors') 


'proditorie' 

'felonice  et 
proditorie ' 


'felonice' 


Breach  of  safe  conduct 

Extortion 

Forcible  entry 

Riot 

Assaults  of  various  kinds 

Brawling  in  certain  places 

Unlawful  hunting 

Not  following  hue  and  cry 

Barratry  {i.e.  stirring  up  of 

strife) 
Nuisance 

Forgery  (  ?  1st  offence) 
Religious  offences 
Seandalum  Magnatum 
Shooting  in  prohibited  places 
Stealing  heiresses 
Perjury 
Rescue 
Maintenance 
Embracery 
Offences  against   Statute  of 

Liveries 
Conspiracy 


It  will  be  seen  at  once,  by  a  glance  at  the  above  lists,  that 
there  had  been  very  little  disposition  to  extend  the  class  of 
capital  offences,  or  felonies,  since  the  days  of  the  Assise  of 
Northampton ;  ^  only  three  or  four  really  new  felonies  had  been 
added,  for  the  statutory  felony  of  cutting  out  eyes  or  tongue,  for 
which  the  form  of  indictment  is  given,  is  really  only  a  statutory 
definition  of  the  old  offence  of  '  mayhem,'  (which  was  certainly 

1  This  is  quite  clear  from  the  dates  used  in  the  forms,  e.g.  '  anno  regni  Reg. 
Eliz.  XV,'  in  the  indictment  for  forcible  entry  (fo.  183b). 

2  Ante,  p.  41 . 


152    A   SHORT  HISTORY  OF  ENGLISH  LAW 

felonious,  because  an  'appeal'  lay  for  it),  while  suicide  is,  of 

course,  only  a  variety  of  homicide.     The  minor  offences,  usually 

described  in  the  statutes  of  the  period  as  '  trespasses,'  but  just 

beginning  to  be  known  also  as  'misdemeanors,'^  were  nearly  all 

statutory ;  though,  again,   failure  to  follow  the  '  hue  and  cry '  is 

a  very  ancient  offence,  which  was  merely  defined  and  strengthened 

by  statute. 

But    another    point    should   not    escape  attention.     All    the 

offences  above  enumerated    were  indictable,  i.e.  could  only  be 

prosecuted    by    accusation    of    the    grand    iury    and 
Indictments     ^         .  i         .  i  xx       •  t\      ■         +U-  •    ^ 

conviction   by   the    petty  jury.      During  this  period, 

the  widest  interpretation  was  evidently  put  upon  the  section  of 

the  statute  of  1360,^  which  empowered  the  Justices  of  the  Peace 

to  hear  and  determine   felonies ;  and,  if  we  may  judge  by  the 

attitude  of  Fitzherbert's  editor,  there  was  no  limit  to  the  exercise 

of  this  jurisdiction.      Apparently  the  most  serious  felonies,  even 

High  Treason  itself,^  could  be  tried  at  Quarter  Sessions,  no  less 

than  before  the  itinerant  Justices  of  the  Benches.      It  must  not 

be  supposed,  however,  that  the  authority  of  the  Justice  of  the 

Peace  was  confined  to  his  work  in  sessions.      At  the  close  of  the 

second  Book  of  Lambard's  Eirenarcha  will  be  found  a  formidable 

list  of  things  'which  one  Justice  of   the  Peace  may  doe  out  of 

the  Sessions'  ;  and  from  this  we  learn  that,  not  merely  what  we 

should  consider  strictly  magisterial  acts,  such  as  taking  sureties 

for    good    behaviour,  arresting    and  committing  to  prison,   and 

searching  for  stolen  goods,  but  acts  of  at  least  a  quasi-judicial 

character,  could  be  performed  by  the  Justice  in  the  privacy  of 

his    own    hall.     Thus,  he   could    decide     controversies  between 

masters  and  servants,^  hear  and  determine  offences    against  the 

Ordinance  relating  to  Tile-Making,^  punish    offences  against  the 

Assize  of  Fuel,^  hear  disputes   under  the  Statute  of  Watermen,^ 

examine  for   breaches  of    the  statute  against    illegal    shooting,* 

and  try  and  punish  hedge-breakers  and  robbers  of  orchards  and 

1  There  is  a  title  of  '  Misdemeanors'  in  the  index  to  Fitzherbert's  book,  or,  rather 
the  edition  of  Crompton.     But  the  reference  to  the  text  cannot  be  traced. 
*34  Edw.  Ill,  c.  1  (7). 

'Lanibard,  Bk.  II.  cap.  7  (p.  226)  seems  to  be  a  little  doubtful  on  this  point. 
*Lanibard,  190.    (The  authority  was  the  Statute  of  Labourers.) 
*Ihid.,  193-104.   (The  Ordinance  is  17  Edw.  IV.  (1477)  c.  4). 
^IhicL,  H»G-197  (7  Edw.  VI  (1553)  c.  7). 
^Ibid.,  203  (2  &  3  Ph.  &  M.  (1555)  c.  16). 
^Ibid.,  296  (33  Hen.  VIII.  (1541)  c.  6). 


CRIMINAL  LAW  AND  PROCEDURE     153 

gardens.^     Other    powers    were    expressly  conferred  on  two  or 

more  Justices,  to    be  exercised  out  of  sessions;    notably  under 

the  Riot  Act  of  1411,^   and  the    Elizabethan    Poor  Law.^      It 

will  be  noted,  that  all  these   powers  are  statutory ;  because  the 

Justices  themselves  are  statutory  officials,  having  no  traditional 

or  'common  law'  powers.      But  it   is  hardly  going  too    far  to 

suggest  that,  in  many  cases,  these  statutory  offences  were  really 

mere  recognitions  of  ancient  communal  misdoings,  which,  in  the 

earliest  times,   would  have  been   the    subject  of    fine  or  other 

punishment  in  the  Hundred   Court,  and,  somewhat  later,  in  the 

Leet  sessions  of  the  High  Constable.     Just  in  the  same  way  as 

the  new  Justices  had  succeeded  to  the  position  of  the  sheriff'  as 

apprehender    and    custodian    of    persons    charged  w^th    serious 

offences,  so  they  had  succeeded  to  the  jurisdiction  of  the  decaying 

popular  moots  in  the  punishment  of  petty  offences. 

Before  leaving  them,  a  passing  reference  must  be  made  to  a 

General         question  whicli  has  later  become  of  importance.     Was 

and  Special     ^}jg    modern    distinction    between   Quarter    (or   Gen- 
Sessions  i 

eral)  and  Petty  Sessions  recognized  in  the  period 
under  review? 

It  is  easy  to  make  a  mistake  on  this  point.  The  modern 
lawyer  thinks  of  Quarter  Sessions  as  a  Court  by  which  more 
serious  offences  are  tried,  and  as  a  court  of  appeal  from  Petty 
Sessions,  which  decides,  in  a  '  summary '  manner  (i.e.  without  a 
jury)  on  accusations  of  petty  offences.  But  w^e  have  seen  that, 
in  the  sixteenth  century,  petty  offences  were,  to  a  large  extent, 
tried  and  disposed  of  '  out  of  sessions  ' ;  and  this  practice  con- 
tinued, to  the  great  discredit  of  '  Justices  '  justice,'  until  the 
passing  of  Sir  John  Jervis'  Acts,  in  the  nineteenth  century. 
So  there  appears  to  be  no  room  for  any  sessions  but  Quarter  or 
General  Sessions. 

Nevertheless,  it  is  quite  clear  that  Lambard,  at  least,  if  not 
Fitzherbert,  was  familiar  with  'special'  as  distinct  from  'general' 
sessions.  He  tells  us,^  that  they  are  holden  'at  other  times, 
when  it  shall  please  the  Justices  themselves,  ...  to  appoint 
them,'  and,  usually,  only  for  special  business,  such  as  the  delivery 
of  gaols  in  populous  towns.  It  appears  to  have  been  a  moot 
point  between  Fitzherbert  and  Lambard   whether  at  '  special ' 

1  Lambard,  303  (43  Eliz.  (1601)  c.  7).  '39  Eliz.  (1597)  c.  3,  s.  3. 

2 13  Hen.  IV,  c.  7.  *  Book  IV,  cap.  20. 


154     A   SHORT  HISTORY  OF  ENGLISH  LAW 

session  the  Justices  were  at  liberty  to  '  give  in  charge  '  all  the 
statutes  alluded  to  in  their  Commission;  and  the  matter  was 
complicated,  for  a  particular  reason.  Just  after  Fitzherbert's 
death  in  1538,  a  statute  had  been  passed  ^  for  the  institution  of 
what  were  known  as  '  six  weeks'  sessions,'  being,  in  fact,  very 
much  like  the  modern  Petty  Sessions,  for  the  trial  of  minor 
offences  in  limited  divisions  of  the  county.  But  this  statute, 
having  been  found  oppressive,  had  been  repealed  in  1545 ;  ^ 
and  the  business  of  'the  six  weeks'  sessions'  had,  thereupon, 
reverted  to  the  Justices  out  of  sessions.  It  was  possible,  there- 
fore, to  argue,  that  '  special  sessions '  were  an  attempt  to  revive 
an  abolished  institution,  and  therefore  invalid. 

Finally,  on  the  subject  of  Justices,  it  may  be  remarked,  that, 
speaking  generally,  the  Commission  of  the  Peace,  of  which  a 
Borough  specimen  appears  in  Fitzherbert,^  is  a  commission 
Justices  fQj.  ^]^g  county ;  but  that  Commissions  of  the  Peace 
for  boroughs  were,  evidently,  not  unknown  in  the  sixteenth 
century.^  During  the  Commonwealth  period,  indeed,  some  of  the 
boroughs  developed  an  elected  magistracy ;  but  this  practice, 
except  as  regards  the  Mayor  (who  was  not,  necessarily,  a  Justice 
of  the  Peace)  was  put  down  with  a  strong  hand  after  the  Res- 
toration. Save  for  these  exceptions,  however,  it  has  been  statute 
law  since  1535,^  that  the  appointment  of  Justices  of  the  Peace, 
even  in  counties  palatine,  is  an  exclusive  right  of  the  royal  prerog- 
ative. 

Next  in  importance,  in  changing  the  character  of  criminal 
procedure  in  this  period,  to  the  appearance  of  the  peace  juris- 
diction, was  the  practical  disappearance  of  the  ancient  procedure 
byway  of  appeal  of  felony.  The  nature  of  this  procedure  has  been 
discussed  at  an  earlier  stage ;  and  we  have  seen  how,  by  means 
of  the  new  jury-system,  the  King's  judges  had  succeeded  in  re- 
stricting the  use  of  it.^ 

Nevertheless,  it  is  clear  that,   at  the  commencement  of  our 

present  period,  the  appeal  of  felony  was  regarded,  if  not  with 

favour,  at  least  with  toleration,  by  the  State.     For 

the  Statute  of  Gloucester^   abolished   the   necessity 

for    '  fresh    suit '     in     conducting     an     appeal ;    and     enacted 

>  33  Hen.  VIII  (1541)  c.  10.  « 37  Hen.  VIII,  c.  7.  '  Op.  cit.  ff.  1,  2. 

*  Ihul.  fo.  77a.  8  Ante,  pp.  51,  52. 

'  27  Hen.  VIII,  c.  24,  s.  2.  ^  6  Edw.  I  (1278)  c.  9. 


CRIMINAL  LAW  AND   PROCEDURE     155 

that  an  appeal  brought  within  a  year  and  a  day  of  the 
commission  of  the  alleged  offence  should  not  abate  for 
delay.  But  the  tide  quickly  turned.  The  Statute  of  West- 
minster II  ^  provides  for  the  punishment  of  persons  bringing 
unsuccessful  appeals.  The  Statute  of  Appeals  of  1300  ^  allows 
any  person  appealed  by  an  'approver'  (i.e.  an  accomplice 
turning  King's  evidence)  to  put  himself  upon  his  country,  i.e. 
claim  to  be  tried  by  a  jury.  A  statute  of  1399^  forbade  the 
hearing  of  appeals  in  Parliament  —  a  rule  which  practically 
put  a  stop  to  appeals  of  treason.  But  the  two  steps  which  did 
most  towards  abolishing  appeals  were  taken  in  the  years  1486 
and  1529  respectively,  and  were  both  of  an  indirect  nature. 

Nothing  is  more  characteristic  of  the  sacredness  with  which 
the  ancient  right  of  revenge  was  regarded,  even  so  late  as  the 
fourteenth  century,  than  the  rule  which  grew  up  as  the  result  of 
the  clause  of  the  Statute  of  Gloucester,  above  alluded  to.  We 
have  seen^  that,  when  indictments  were  first  introduced  by  the 
Assises  of  the  twelfth  century,  there  was  considerable  doubt  as 
to  the  respective  priorities  of  the  Crown  and  the  persons  en- 
titled to  prosecute  an  offence  by  way  of  appeal.  The  Statute  of 
Gloucester,  which,  as  just  stated,  gave  the  appellor  a  year  and  a 
day  from  the  commission  of  the  offence  in  which  to  bring  his 
appeal,  seems  to  have  been  taken  as  creating  a  'close  time'  in  the 
appellor's  favour.  During  that  time,  accordingly,  the  public 
prosecution  was  suspended ;  with,  probably,  the  result  that, 
in  many  cases,  the  offender  made  good  his  escape  entirely. 
This  rule  was,  however,  abolished  by  statute  in  1486,  so  far  as 
appeals  of  murder  were  concerned.^ 

Again,  one  of  the  drawbacks  to  a  prosecution  by  indict- 
ment, from  the  injured  person's  point  of  view,  was  that,  a  con- 
victed felon's  chattels  being  forfeited  to  the  Crown,  no  restitu- 
tion of  stolen  property  could  be  claimed  by  the  prosecutor. 
Naturally  in  such  circumstances,  a  prosecutor  who  was  a  powerful 
man  of  his  hands  preferred  an  appeal  of  larceny.  But,  in  the 
year  1529,^  it  was  enacted  that  whenever  a  person  was  convicted 
of  felonious  robbery  or  larceny,  '  by  reason  of  evidence  given 
by  the  party  so  robbed,  or  owner,'  the  latter  should  be  entitled  to 

'  13  Edw.  I,  St.  I  (1285)  c.  12.  *  Ante,  pp.  42,  43. 

2  28  Edw.  I.  6  3  Hen.  VII  (1486)  c.  1  (14). 

n  Hen.  IV,  c.   14   (4).  '21  Hen.  VIII,  c.  11. 


156    A   SHORT  HISTORY  OF  ENGLISH   LAW 

a  writ  of  restitution  of  his  goods,  '  in  like  manner  as  though  any 
such  felon  or  felons  were  attained  at  the  suit  of  the  party  in 
appeal ' ;  thus  removing  one  of  the  chief  inducements  to  bring 
an  appeal  of  robbery  or  larceny.  This  provision  had  a  substan- 
tial effect  on  the  civil  as  well  as  the  criminal  law ;  for  it  overrode 
the  rule  that  purchase  in  market  overt  by  a  bond  fide  purchaser 
conferred  a  valid  title,  and  the  exception  prevails  to  the  present 
day.  It  is  not  to  be  supposed,  that  even  these  changes  in  the  law 
caused  the  immediate  and  total  disappearance  of  the  appeal  of 
felony;  and  it  is  quite  worthy  of  notice  that  the  Appendix  to 
Fitzherbert's  work  on  the  Justice  of  the  Peace,  published  in 
1583,  contains  a  full  set  of  forms  of  '  appeals,'  and  there  are 
several  references  to  '  appeals  '  in  Dyer's  reports.  On  the  other 
hand,  it  is  equally  fair  to  point  out,  that  the  later  Lambard,  who 
wrote  at  the  beginning  of  the  seventeenth  century,  though 
he  closely  follows  Fitzherbert's  order,  does  not  think  it 
necessary  to  give  forms  of  appeals.  He  gives,  however,  the 
form  of  the  Writ  of  Restitution.^  As  is  well  know^i,  the  ap- 
peal of  murder  was  revived,  with  dramatic  effect,  in  Thorn- 
ton's Case,  in  1819;  but  the  total  abolition  of  appeals  im- 
mediately followed." 

Finally,  criminal  procedure  was  rendered  greatly  more  effective 
in  this  period  by  the  severe  restrictions  placed  upon  the  absurd 
Benefit  of  privileges  known  as  '  benefit  of  clergy  '  and  '  sanctu- 
ciergy  ^^j-y  '     ^g   ^^^   have    said,^   the    former   arose   out   of 

the  struggle  between  State  and  Church  in  the  twelfth  century, 
on  the  subject  of  '  criminous  clerks '  —  i.e.  jurisdiction  to  try 
clerks  accused  of  crime.  The  compromise  arrived  at  in  the 
Constitutions  of  Clarendon^  was  not  kept,  mainly  owing  to  the 
indignation  felt  for  the  murder  of  Becket ;  and  it  was  well 
understood,  that  the  handing  back  of  the  accused  to  the  clerical 
tribunal  on  the  plea  of  privilege,  was  a  mere  formality  precedent 
to  his  liberation.  Moreover,  in  the  twelfth  century,  the  line 
between  cleric  and  lay  was  very  vaguely  drawn,  owing  to 
the  existence  of  a  number  of  '  minor  orders  ' ;  while  the 
rough  and  ready  test  adopted  by  the  royal  judges  enabled 
practically  any  man  who  could  get  up  the  small  quantity  of 
Latin  necessary  to  enable  him  to  repeat  a  well-known  verse  of 

^  Processes,  ad  fin.  ^  Ante,  p.  74. 

259  Geo.  III.  c.  46,  8.  1.  *Cap.  Ill    S.C.  138. 


CRIMINAL   LAW  AND   PROCEDURE      157 

Scripture,  to  escape  a  conviction  by  '  pleading  his  clergy.'  ^  The 
only  merit  of  the  privilege  was,  that  it  served  as  a  mitigation 
of  a  rather  savage  criminal  law.  But,  even  in  this  respect,  it 
was  defective ;  for  no  woman  could  be  a  cleric,  and,  therefore, 
no  woman  could  plead  benefit  of  clergy. 

The  privilege  was  one  of  the  first  attacked  by  the  Reforma- 
tion statutes.  In  1531,^  all  persons  below  the  rank  of  subdeacon 
were  excluded  from  the  benefit  of  it  in  the  case  of  the  more  serious 
felonies ;  and  even  those  who  were  admitted  to  it  were  to  be  kept 
in  prison  by  the  Ordinary,  or  made  to  find  sureties  for  good 
behaviour.  The  exclusion  was  extended  to  persons  in  higher 
or  genuine  holy  orders  in  1536.^  Forty  years  later,  a  still  more 
stringent  statute  was  passed,^  Where  the  privilege  was  allowed, 
the  layman  pleading  it  was  to  be  branded  in  the  hand ;  and,  in- 
stead of  being  delivered  over  to  the  Ordinary,  to  undergo  imagi- 
nary purgation,  he  was  to  be  at  the  disposal  of  the  Justices,  who 
might  either  set  him  free  at  once,  or  imprison  him  for  any  period 
not  exceeding  a  year,  while  no  one  was  to  be  allowed  to  plead  his 
clergy  a  second  time.  But  the  most  effective  reduction  of  the 
privilege  resulted  from  the  practice,  which  began  in  the  six- 
teenth century,  of  enacting  that  certain  offences  should  be  '  with- 
out benefit  of  clergy ' ;  and,  as  new  crimes  were  thus  created, 
and  older  ones  passed  through  the  sieve  of  legislation,^  the  privi- 
lege became  of  less  and  less  value.  In  1706,  the  farce  of  applying 
the  reading  test  was  abolished  ;  ^  but  in  1827  the  privilege  itself 
was  entirely  swept  away.^ 

The  privilege  of  sanctuary  was,  originally,  a  notable  achieve- 
ment in  the  crusade  waged  by  the  Church  in  the  Dark  Ages 
against  violence  and  disorder.  Whilst  unable,  as  has 
been  before  pointed  out,^  wholly  to  repress  the  waging 
of  the  blood-feud,  the  Church  did  succeed  in  establishing  the 
doctrine,  that  the  feud  should  be  suspended  during  certain  seasons 
and  in  certain  places.  The  former  restriction  is  the  origin  of 
the  legal  holidays  (i.e.  '  holy  days ')  and  vacations,  when  no 
legal  process  was  possible.     The  latter  gave  rise  to  the  privilege 

'  The  mechanical  way  in  which  the  privilege  was  exercised  may  be  guessed  at  by 
the  fact,  that  the  copy  of  the  Gospels  kept  in  Court  for  the  purpose  of  administering 
the  test  was  officially  known  as  'The  Clergy.'      (Somers  Tracts,  VI,  235.) 

«23  Hen.  VIII,  c.  1.  ^  28  Hen.  VIII,  c.  1.  "  18  Eliz.  (1576)  c.  7. 

6  E.g.  1  Edw.  VI  (1547)  c.  12,  s.  10 ;  5  and  6  Edw.  VI  (1552)  c.  10 ;  8  Eliz  .  (1565) 
c.  4;    18  Eliz.  (1576)  c.  7,  s.  1 ;    39  Eliz.  (1597)  c.  9. 

»  5  Anne,  c.  6,  s.  4.  ^  7  &  8  Geo.  IV,  c.  28,  s.  6.  « _4„;g_  p    §_ 


Sanctuary        ,  ,     p  •    ^     i        ^  g 


158    A  SHORT  HISTORY  OF  ENGLISH  LAW 

of  sanctuary,  which  we  are  now  discussing.  If  the  accused 
could  succeed  in  reaching  some  place  which  was  sheltered  by 
the  protection  of  the  Church,  before  the  avenger  of  blood  caught 
him,  he  could,  practically,  evade  the  challenge  to  battle ;  for 
the  thunders  of  the  Church  would  have  blasted  the  daring  '  ap- 
pellor '  who  had  ventured  to  drag  the  fugitive  from  the  sacred 
precincts.  But  the  privilege  was  confined,  strictly,  to  the  local- 
ity ;  and  worked  a  suspension,  only,  not  an  extinction  of  the  feud. 

The  situation  was,  however,  at  that,  intolerable  to  both 
parties.  The  fugitive  was,  virtually,  condemned  to  perpetual 
imprisonment ;  ^  for,  the  moment  he  left  the  place  of  sanctuary, 
he  could  be  attacked.  The  accuser  was,  virtually,  condemned 
to  perpetual  watching  outside  the  sacred  spot ;  unless  he  was 
prepared  to  allow  his  adversary  to  escape.  No  doubt,  advan- 
tage was  often  taken  of  the  delay  to  arrange  some  kind  of  a 
compromise  between  the  parties,  i.e.  generally,  the  payment  of 
the  blood-fine  or  '  wergild.'  But,  as  has  been  explained  in  an 
earlier  chapter,^  there  seems  to  have  been  no  power,  at  any  rate 
in  the  earliest  days,  to  compel  the  acceptance  of  '  wer  '  or  '  wite.' 

Apparently,  however,  a  way  had  been  found  out  of  the  diffi- 
culty,  before  the  close  of  the  jNIiddle  Ages,  in  the  practice  of 
'  abjuring  the  realm,'  which  we  find  fully  recognized  in  the 
Assises  of  Clarendon  and  Northampton.^  The  accused,  in  the 
presence  of  the  coroner,  took  the  oath  of  abjuration,  became,  in 
fact,  an  outlaw,  and  was  then  given  a  safe-conduct,  under  shelter 
of  which  he  was  passed  from  constable  to  constable  to  the  sea, 
where  he  took  ship  for  a  foreign  clime,  and  was  seen  no  more 
in  his  native  land. 

Perhaps  the  most  remarkable  fact  in  the  history  of  '  sanctuary  ' 
is  that,  as  the  evidence  abundantly  shows,  it  was  incorporated, 
apparently  without  question,  into  that  new  royal  criminal  pro- 
cedure by  indictment  which,  as  we  have  seen,^  was  introduced 
in  the  twelfth  century.  It  was  quite  natural,  according  to 
our  ideas,  that  the  wild  justice  of  revenge  should  be  curbed  by 
some  such  restriction  as  that  afforded  by  the  privilege  of  sanctu- 
ary ;  but  it  is  somewhat  startling  to  find  what  we  should  consider 

'  The  inconveniences  attendant  on  this  state  of  affairs  are  detailed,  with  more 
directness  than  elegance,  in  the  Arliculi  Cleri  of  1315. 
«  Ante,  pp.  8,  0. 

'  Clarendon,  cap.  14;   Northampton,  cap.  1  (S.C.  145,  151). 
*  Ante,  pp.  40,  41. 


CRIMINAL  LAW  AND   PROCEDURE     159 

to  be  the  passionless  justice  of  the  State  subjected  to  a  similar 
control.  Perhaps  the  impartiality  of  the  State  was  not  so  com- 
plete as  in  modern  times ;  perhaps  the  idea  (which  we  have  traced 
in  other  quarters)/  that  the  King  ought  not  to  have  any  unfair 
advantage  over  the  private  prosecutor,  was  responsible  for 
the  incorporation  of  the  privilege  into  true  criminal  law.  At  any 
rate,  the  adoption  is  beyond  question ;  for  we  find  the  Articuli 
Cleri  of  1315,^  not  merely  providing  remedies  for  some  of  the 
minor  defects  of  the  situation,  but  exempting  clerics  altogether 
from  the  necessity  of  abjuring  the  realm  after  taking  sanctuary.^ 

It  was  not,  apparently,  until  the  sixteenth  century,  that  the 
mischief  of  the  privilege  began  to  be  realized ;  and,  even  then, 
the  first  thought  of  the  reformers  seems  to  have  been  in  a  direction 
which  to  us  appears  quaint  enough.  The  advisers  of  Henry 
VIII  seem  to  have  regretted  the  loss  to  the  kingdom,  by  the 
process  of  abjuration,  of  so  many  active  spirits,  who,  though 
not  exactly  modelled  after  a  Sunday  school  pattern,  had  in  them, 
doubtless,  the  making  of  '  expert  mariners,'  and  '  very  able  and 
apt  men  for  the  wars.'  ^  Accordingly,  the  person  who  has  fled 
to  sanctuary,  was  not,  after  taking  the  oath  of  abjuration, 
to  avoid  the  realm,  but  to  remain  a  perpetual  prisoner  under  the 
control  of  the  authorities  of  his  chosen  sanctuary,  whence  he 
could,  doubtless,  be  released  by  the  royal  officers  anxious  to  secure 
recruits  for  army  and  navy.  He  was  not,  however,  allowed  to 
disport  himself  in  his  former  lawless  manner ;  for  the  commission 
of  felony  after  abjuration  was  to  involve  loss  of  the  privilege  of 
sanctuary. 

But,  a  few  years  later,  probably  under  the  double  influence 
of  the  decay  of  appeals  and  the  feeling  against  Church  privileges, 
we  find  a  stringent  statute  ^  on  the  subject,  which,  whilst  not 
reversing  entirely  the  policy  of  1530,  in  effect  renders  it  of  less 
importance.  A  large  number  of  sanctuaries  are  abolished  ;  and, 
in  fact,  only  parish,  cathedral,  and  collegiate  churches,  together 
with  eight  other  specially  favoured  places,  are  to  retain  what 
was,  doubtless,  a  very  lucrative  privilege.  Moreover,  persons 
committing    murder,   rape,   burglary,    highway  robbery,  house- 

>  Ante,  p.  155.  2  9  Edw.  II,  st.  I,  cc.  12,  15. 

'  This  provision  (c.  15)  clearly  demonstrates  that  the  compromise  of  the  Constitu- 
tions of  Clarendon,  on  the  subject  of  criminous  clerks,  had  broken  down.  Clerical 
immunity  from  lay  jurisdiction  is  openly  admitted  by  the  statute. 

<  22  Hen.  VIII  (1530)  c.  14.  '  32  Hen.  VIII  (1540)  c.  12. 


160    A   SHORT  HISTORY  OF  ENGLISH  LAW 

breaking,  or  arson,  are  excluded  entirely  from  privilege  of  sanctu- 
ary; and  the  number  of  fugitives  which  may  be  sheltered  in 
any  one  sanctuary  is  restricted  to  twenty.  All  this  legislation 
was  repealed  by  a  statute  of  James  I,  passed  in  the  year  1G04,^ 
which  is  noteworthy  as  an  early  example  of  what  would  now  be 
called  a  '  Statute  Law  Revision  Act.'  But,  whatever  may  have 
been  the  object  of  this  apparently  retrograde  step,  it  was  of  no 
great  importance ;  for,  in  a  statute  of  the  year  1623,^  the  privilege 
of  sanct«uary  was  entirely  abolished. 

1  1  Jac.  I,  c.  26,  s.  34.  2  21  Jac.  I,  c.  28,  s.  7. 


CHAPTER   XII 

CIVIL  PROCEDURE  IN  THE  LATER  MIDDLE  AGES 

THE  gradual  severance  of  criminal  from  civil  proceedings 
which,  as  has  been  explained  in  the  preceding  chapter, 
resulted  from  the  introduction  of  indictments  and  the 
gradual  abolition  of  '  appeals,'  paved  the  way  for  the  develop- 
ment, on  scientific  lines,  of  purely  civil  procedure,  i.e.  of  pro- 
cedure in  actions  between  citizen  and  citizen  for  the  vindication 
Written  of  private  rights.  For,  whilst  the  direct  connection 
ings  between  true  criminal  procedure  and  the  ancient 
right  of  vengeance  lingered  long  in  the  public  mind,  and  produced 
that  intense  conservatism  which  retained,  in  criminal  procedure, 
the  archaic  oral  pleadings  and  the  minute  correctness  of  detail 
which  characterized  the  appeal  of  battle ;  in  the  less  heated 
atmosphere  of  civil  procedure,  convenience  and  legal  science  were 
allowed  freer  play.  Thus  it  seems  quite  clear,  though  the  exact 
dates  elude  us,  that,  by  the  beginning  of  the  sixteenth  century, 
the  ancient  oral  pleadings  in  open  court,  uttered  by  the  '  Serjeant ' 
or  '  counter  '  of  the  parties,  had  given  way  to  the  more  convenient 
written  pleadings  which,  after  being  exchanged  between  the 
parties,  were  enrolled  on  the  records  of  the  tribunal.  At  any 
rate,  it  seems  impossible  to  believe  that  the  elaborate  and  lengthy 
■pleadings  set  forth  in  the  Liber  Intrationuin  of  1510,  and  the 
other  early  '  Books  of  Entries,'  ^  were  really  intended  to  be 
delivered  by  word  of  mouth ;  ^  though  the  perpetual  recurrence 
of  the  phrase  '  comes  and  says  '  reminds  us  of  the  earlier  practice. 
These  books  show  us  also,  that  the  sequence  of  steps  so  familiar 
to  the  later  pleaders  was  already  established  in  the  sixteenth 
century.     After  the  narratio  or  '  declaration  '  of  the  plaintiff, 

1  The  most  famous  of  these  in  the  period  now  under  discussion  are  those  of 
Rastell  (1564),  Coke  (1614),  and  Brownlow  (1652). 

2  On  the  other  hand,  the  statute  of  1362  (36  Edw.  Ill,  st.  I,  c.  15)  which  required 
pleadings  to  be  in  the  English  tongue,  appears  to  assiune  that  they  were  delivered 
orally  in  Court  by  the  'sergeants  and  other  pleaders.' 


162    A  SHORT   HISTORY  OF  ENGLISH  LAW 

comes  the  '  bar  '  or  '  plea '  of  the  defendant,  followed  by  the 
replicatio  or  '  reply  '  of  the  plaintiff,  and  this  again,  if  necessary, 
by  the  rejoinder  of  the  defendant ;  till,  at  last,  the  parties 
attain  their  desired  end,  viz.  the  joinder  of  issue  on  some  definite 
question  which  can  be  submitted  to  the  jury.  But  this  process 
was  rendered  even  more  artificial  and  complicated  than  it  need 
otherwise  have  been,  by  a  curious  reaction  which  seems  to  have 
taken  place  quite  early  in  this  period,  and  which  led  to  the 
development  of  the  highly  technical  process  known  as  'giving 
colour.' 

We  have  seen  ^  that,  as  a  result  of  a  series  of  procedural  re- 
forms extending  over  part  of  the  twelfth  and  the  whole  of  the 
thirteenth  centuries,  the  jury  had  gradually  ousted  the 
older  methods  of  trial  as  the  ordinary  procedure  in 
civil  as  well  as  criminal  cases.  Though  the  details  of  this  impor- 
tant development,  especially  in  the  later  stages,  are  still  among 
the  unsolved  mysteries  of  English  legal  history,^  we  may  take 
it  as  settled  that,  at  any  rate  by  the  middle  of  the  fourteenth 
century,  the  ordinary  civil  action  at  common  law  was  tried  by  a 
jury  of  twelve  men. 

But,  apparently,  the  defects  of  the  jury  system  had  already 
made  themselves  felt ;  and  from  the  beginning  of  the  fifteenth 
century,  and  especially  in  those  very  proceedings,  e.g.  assises, 
entries,  and  trespasses,  to  which  the  jury-system  had  from  the 
first  been  essential,  we  notice  a  curious  plan  adopted  for  the 
purpose  of  mitigating  its  defects.  Thus,  in  a  case  of  the  year 
1400,^  the  parson  of  Saltash  brought  a  Writ  of  Trespass  for 
goods  taken  in  Saltash.  Now  there  can  be  little  doubt  that  the 
defendant  had  taken  the  goods ;  and,  therefore,  that  if  he  had 
contented  himself  with  a  simple  denial,  or,  in  the  words  of  later 
days,  '  pleaded  the  general  issue  '  of  *  not  guilty,'  the  jury  would 
infallibly  have  found  against  him.  But  the  defendant  believed 
himself  able  to  justify  his  proceedings  as  servant  to  the  Dean  of 
Windsor,  who  was  '  parson  '  or  rector  of  Saltash ;  and  so  he 
alleged  a  taking  in  that  capacity  and  an  attempted  seizure  by 
the  plaintiff.  Thus  he  raised  a  question  of  law,  the  decision  of 
which  was  for  the  Court,  not  for  the  jury ;   and  though,  in  that 

•  Ante,  pp.  46-52. 

*  The  most  notable  contribution  to  the  subject  is  Thayer's  Treatise  on  Evidence 
at  the  Common  Law  (London  and  Boston,  1898). 

» Y.B.  2  Hen.  IV,  fo.  5,  pi.  16. 


CIVIL  PROCEDURE   IN   MIDDLE  AGES     163 

particular  case,  the  point  of  law  went  against  the  defendant,  the 
propriety  of  the  fictitious  story  was  not  questioned.  The  illus- 
tration given  in  Doctor  and  Student  ^  is  an  Assise  of  Novel  Dis- 
seisin brought  against  an  occupant  of  land  by  a  stranger  of  whose 
title  the  defendant  knows  nothing.  If  the  defendant  were  to 
plead  simply  '  no  wrong  nor  disseisin,'  i.e.  the  general  issue,  he 
might  find  himself  defeated  by  a  hostile  verdict  on  some  techni- 
cal disseisin  committed  by  a  predecessor  in  title.  Even  if  he 
were  to  put  his  own  title  in  evidence,  that  would  not  help  him ; 
for  that  would  be  a  plea  '  amounting  to  the  general  issue,'  and, 
therefore,  going  to  the  jury  as  a  whole.  But,  by  giving  the 
plaintiff  a  '  show,'  or  '  colour,'  i.e.  by  imagining  a  fictitious  title 
for  the  plaintiff,  specious,  but  inferior  to  his  own,^  and  asking 
the  judgment  of  the  Court  upon  it,  he  avoided  the  general  issue. 
Naturally,  the  plaintiff,  unwilling  to  have  an  inferior  title  thus 
'  surmised  '  or  put  upon  him,  replied  with  his  real  title ;  and 
thus  the  question  came  before  the  Court  as  one  of  law.  In  the 
report  of  the  leading  case  on  the  subject  of  '  colour,'  viz.  Doctor 
Leyfield's  Case,  decided  in  1611,^  it  is  said  by  Coke,  that  every 
*  colour  '  ought  to  have  four  qualities,  viz. :  — 

1.  It  ought  to  be  a  doubt  to  lay  people  (or,  as  it  is  some- 

times put,  to  '  the  lay  gents  ') ; 

2.  It  ought  to  have  continuance,  i.e.  it  must  feign  a  state 

of  things  existing  at  the  date  of  the  cause  of  action ; 

3.  It  ought  to  be  such  as,  if  it  were  of  effect  (i.e.  true)  it 

would  maintain  the  action  ; 

4.  It  should  be  given  by  him  who  is  in  by  the  first  convey- 

ance, i.e.  has  apparently  the  older  title ;    because  he  is 

the    true    defendant,    the    presumption    being    in    his 

favour. 

It  must,  of  course,  be  remembered  that,   during  the  latter 

part  of  the  period  now  under  discussion,  there  was  growing  up. 

Equity  alongside   this    common    law,   technical,   '  litigatory ' 

roce  lire      procedure,   another   system   of   civil   procedure   of  a 

wholly   different    character.     This   was    the    procedure   of    the 

*  Dialogue,  II,  chap.  53. 

•  The  example  in  Doctor  and  Student  is  that  the  plantiff  claims  '  by  colour  of  a 
deed  of  feoffment,'  which,  without  livery,  would  not  have  passed  seisin.  This  appears 
to  have  become  common  form ;  for  in  1606  an  ignorant  pleader  actually  applied  it 
to  goods,  with  disastrous  results,  for  goods  did  pass  by  deed  without  livery  (Radford 
V.  Harbyn,  Cro.  Jac.  122). 

»  10  Rep.  88. 


1G4     A   SHORT   HISTORY  OF   ENGLISH  LAW 

Court  of  Chancery,  which,  at  least  from  the  end  of  the  fourteenth 
century,^  had  become  a  tribunal  of  resort  for  suitors  whose 
cases  were  not  covered  by  the  common  law  Register  of  Writs. 
Chancery  procedure  differed  in  almost  ever}'  conceivable  respect 
from  the  procedure  of  the  Common  Law  courts.  In  the  first 
place,  it  did  not  treat  the  parties  as  equal  rivals,  coming  for  a 
decision  of  strict  right ;  but  as  petitioner  and  respondent  in  a 
matter  of  grace.  Accordingly,  the  proceedings  in  a  Chancery  suit 
did  not  begin  with  the  issue  of  a  Writ  Original,  in  a  stereotyped 
form,  but  with  an  informal  petition,  or  Bill,  in  which  the  com- 
plainant set  forth  his  grievance  in  artless  language.  Then, 
if  the  petition  disclosed  a  prima  facie  case  for  the  interference 
of  Equity,  the  Chancellor  issued  a  judicial  Writ  of  Subptjena  - 
against  the  respondent,  or  defendant,  bidding  him,  under  pain 
of  =£100,  appear  and  answer  on  oath  the  petitioner's  complaint. 
No  doubt,  at  first,  as  in  the  Common  Law  courts,  the  pleadings 
in  Chancery  were  oral ;  but,  by  the  beginning  of  the  seventeenth 
century  at  the  latest,  it  is  clear  that  a  regular  succession  of 
written  pleadings  —  bill,  answer  or  plea,  and  replication  or 
reply  —  had  been  established.^  Only,  it  must  be  remembered 
again,  these  pleadings  were  not,  like  those  of  the  Common  Law 
courts,  technical  and  often  imaginary  arguments  drawn  out  to  an 
issue ;  but  merely  statements  of  facts.  Even  the  '  demurrer,'  ■* 
which  at  Common  Law  was  a  highly  technical  step,  raising  a 

1  The  earliest  Chancery  reports  that  are  conveniently  accessible  are  those  printed 
in  the  Record  Commission's  Calendars  of  Proceedings  in  Chancery  (1827),  and  in  the 
Seidell  Society's  Select  Cases  in  Chancery  (Vol.  10),  together  with  occasional  examples 
in  Bellewe's  Les  Ans  du  Roy  Richard  Le  Second.  These  cases  show  that  the  Equity 
jurisdiction  of  the  Court  was  well  established  in  the  latter  half  of  the  fourteenth 
century. 

2  The  Subpoena  ad  respondendum,  which  must  be  carefully  distinguished  from 
the  Subpoena  ad  testificandum  (to  compel  the  attendance  of  a  witness),  is  attributed 
to  the  invention  of  John  Waltham,  Master  of  the  Rolls,  1381-138G.  It  is  said,  but 
with  doubtful  truth,  by  the  Serjeant  in  his  comment  on  Doctor  and  Student  (Appen- 
dix, Part  II),  to  be  the  process  alluded  to  in  a  statute  of  1393  (17  Ric.  II,  c.  6). 
It  is,  however,  certainly  pointed  at  by  the  15  Hen.  Yl  (1436)  c.  4  ;  and  the  increas- 
ing power  of  the  Chancery  jurisdiction  at  the  commencement  of  the  sixteenth  cen- 
tury is  obvious  from  the  Appendix  to  Doctor  and  Student.  The  Serjeant  maliciously 
points  out,  that  the  Writ  of  Subptena  will  not  be  found  in  Fitzherl)crt  {Natura 
Brevium),  obviously  the  classical  treatise  on  writs  of  that  peroid,  i.e.  about 
1520. 

'See  Bacon's  celebrated  Ordinances,  published  in  his  Law  Tracts  (ed.  1737). 
Bacon  became  Lord  Chancellor  in  1618. 

■*  \  demurrer  was  a  plea  by  which  the  person  demurring  admitted  the  facts 
stated  by  his  opponent,  but  denied  that  they  warranted  the  legal  conclusion  drawn 
from  them.  It  was  a  highly  dangerous  step;  for,  if  the;  demurrer  was  overruled, 
the  other  party  got  judgment  at  once,  on  the  admitted  facts. 


CIVIL  PROCEDURE   IN   MIDDLE  AGES     165 

technical  question  of  law,  was,  in  Chancery,  merely  a  suggestion 
that  the  plaintiff  was  already  provided  with  a  legal  remedy,  and 
had  no  need,  therefore,  to  resort  to  the  aid  of  Equity. 

Again,  the  Court  of  Chancery  was  by  no  means  content  to 
play  the  part  of  indifferent  umpire  in  a  judicial  duel ;  its  business 
was  to  examine  the  defendant  and  purge  his  conscience  of  its 
burden  of  guilt.  Its  proceedings  were  '  inquisitorial,'  in  the 
strict  sense.  They  involved  the  administering  of  a  searching 
examination  to  the  respondent ;  and,  though  the  course  of  this 
examination  was,  doubtless,  suggested  by  the  plaintiff',  it  was, 
in  theory,  administered  by  the  Court. ^  Thirdly,  there  was  no 
jury,  for  whose  sake  the  pleadings  had  to  be  worked  up  to  a 
definite  issue  of  '  aye  '  or  '  no  ' ;  it  was  for  the  Court  to  pro- 
nounce a  decree  on  consideration  of  the  whole  facts.  Therefore, 
though  Equity  pleadings  in  later  times  often  assumed  portentous 
length,  they  were  free  from  the  technical  rules  of  Common 
Law  pleading.  Finally,  in  its  decree,  the  Court  of  Chancery 
proceeded  in  personam,  by  imprisoning  the  defendant  until 
he  obeyed  the  order  of  the  Court,  or  even,  if  necessary,  issuing 
a  '  commission  of  rebellion  '  against  him ;  whereas  the  Common 
Law  judgment  either  directly  bound  the  property  in  rein,  or  was 
restricted  to  the  award  of  damages,  to  be  '  made '  by  sale  of 
the  defendant's  chattels  or  body  {Ca.  Sa.),  or,  at  the  option 
of  the  plaintiff',  by  seizure  of  half  his  lands,  under  the  new  remedy 
of  Elegit  introduced  by  the  Statute  of  Westminster  the  Second.^ 
It  will,  of  course,  not  be  forgotten,  that,  towards  the  end  of 
the  period  under  discussion,  the  superiority  of  the  Equity  juris- 
diction in  cases  of  conflict  between  it  and  the  Common  Law  courts 
was  vindicated  in  the  well-known  dispute  between  Chief  Justice 
Coke  and  Lord  Chancellor  Ellesmere,  in  which,  Coke  having 
procured  the  indictment  at  the  ^Middlesex  Sessions  of  two  de- 
fendants in  Common  Law  actions  who  had  applied  to  Chancery 
for  injunctions  to   stop   the   plaintiff's   proceeding,  the   Grand 

^  The  defendant  is  not  to  be  examined  upon  interrogatories,  except  "it  he  in  very 
special  cases,  by  express  order  of  the  Court"  (Bacon,  Ordinances,  No.  70). 

2  13  Edw.  I,  (1285)  st.  I.  c.  18.  Of  course,  by  means  of  arrest  on  mesne  process, 
the  Common  Law  courts  had  also  considerable  powers  against  the  person  of  the 
defendant.  But  that  is  a  different  matter,  to  be  explained  later.  No  doubt,  on  the 
other  hand.  Chancery  had  invented  the  process  of  sequestration,  by  which  property 
in  dispute  could  be  seized  into  the  hands  of  officials  appointed  by  the  Court,  to  put 
pressure  on  a  contumacious  defendant.  But  Lord  Chancellor  Hatton's  attempt  to 
make  a  Chancery  decree  bind  the  legal  estate  directly,  like  a  Fine,  was  not  successful. 


166    A   SHORT   HISTORY  OF  ENGLISH  LAW 

Jury  ignored  the  indictment,  and,  the  matter  having  been  taken 
up  by  the  Law  Officers,  the  King  decided  (though  in  somewhat 
ambiguous  terms)  in  favour  of  the  Chancellor.^ 

It  is  hardly  possible  to  leave  this  part  of  the  subject,  without 
pointing  out,  that  the  procedure  of  the  Court  of  Chancery  re- 
Chancery  sembled  that  of  the  Court  of  Star  Chamber,  almost 
and  star  as  completely  as  it  differed  from  that  of  the  Common 
Law  courts.  So  striking,  indeed,  is  the  resemblance, 
that  the  Star  Chamber  is  sometimes  called  a  '  court  of  criminal 
equity' ;  and  suggestions  of  a  common  origin  are  frequently  met 
with.  The  latter  raise  a  constitutional,  rather  than  a  legal  ques- 
tion ;  but  the  resemblance  between  Chancery  and  Star  Chamber 
in  the  matter  of  procedure  is  indisputable.  Like  the  Chancery, 
the  Star  Chamber  began  with  a  Bill,  followed  by  arrest  and 
examination  of  the  defendant.  As  became  the  criminal  char- 
acter of  the  proceedings,  the  examination  was  more  stringent 
than  in  Chancery  ;  sometimes,  it  is  to  be  feared,  leading  to  actual 
torture.  But  the  principle  was  the  same.  So  too,  the  fact  that 
the  accuser  and  the  accused  were  not  on  equal  terms.  The 
accuser  was  merely  the  informant,  on  whose  evidence  the  Court 
might,  if  it  thought  fit,  act,  but  who  was  not  brought  face  to 
face  with  the  accused.  There  was  no  jury,  as  there  was  none 
in  Chancery,  to  decide  between  the  parties.  Finally,  the  decree 
of  the  Court  of  Star  Chamber,  like  that  of  the  Chancery,  was 
against  the  person  of  the  defendant ;  though,  doubtless,  a  heavy 
fine  might  also  be  levied  from  his  goods.  So  striking  are  the 
resemblances  and  differences  between  the  procedures  of  the 
three  jurisdictions  that  it  may  be  of  interest  to  set  them  out  in 
tabular  form.  (See  page  1G7.)  From  this  it  will  be  seen,  that 
the  procedure  of  the  Court  of  Chancery  agrees  with  that  of  the 
Court  of  Star  Chamber  in  no  less  than  seven  points,  and 
differs  from  it  only  in  two ;  while,  conversely,  it  differs  from 
the  Common  Law  courts  in  seven  points,  and  agrees  only  in  two. 

Finally,  on  this  point,  it  is  not  unworthy  of  mention,  that  when, 
in  accordance  with  somewhat  later  practice,  it  became  common 
to  appoint  a  Lord  Keeper,  or  Commissioners  for  executing  the 
office  of  the  Great  Seal,  instead  of  a  Chancellor,  the  commissions 
of  these  officials,  until  the  abolition  of  the  Court  of  Star  Chamber, 
specially  empowered  them  to  hear  causes  in  that  tribunal. 

*  Bacon  alludes  to  the  royal  decree  (26  July,  1616)  in  hia  Ordinances  (No.  33). 


CIVIL  PROCEDURE   IN   MIDDLE  AGES     167 


[The  Period  is  supposed  to  be  about  the  Year  1500] 


Common  Law  Courts 

Star  Chamber 

1. 

Right. 

Grace. 

2. 

Writ  {i.e.  special  form 
of  action). 

Bill  (no  form  of  action) . 

3. 

Pleadings  ( ?  oral)  to 

Written  pleadings   (no 

issue. 

issue). 

4. 

No    examination    of 
parties. 

Defendant  on  oath. 

5. 

Precedents. 

Discretion. 

6. 

Jury. 

No  jury. 

V. 

In  rem. 

In  personam. 

8. 

Open  accusation. 

Accuser  unknown. 

9. 

Reasons     given     for 
judgment. 

No  reasons  given. 

Chancery 


Grace. 

Bill  (no  form  of  action). 

Written  pleadings  (no 

issue). 
Defendant  on  oath. 

Discretion. 
No  jury. 
In  personam. 
Open  accusation. 
Reasons  given. 


With  regard  to  the  topics  specially  dealt  with  by  the  Court 
of  Chancery  at  the  beginning  of  the  sixteenth  century,  a  very 
useful  summary  will  be  found  in  a  criticism  of  the  work  known 
as  Doctor  and  Student,  previously  alluded  to.  This  is  supposed 
to  be  a  commentary,  by  a  *  Serjeant  of  the  laws  of  England,' 
on  certain  subjects  dealt  with  in  the  two  Dialogues  which  com- 
pose the  main  treatise ;  and  though,  being  obviously  written 
from  the  point  of  view  of  a  common  lawyer,  it  must  be  regarded 
with  some  suspicion,  its  temperate  and  reasonable  tone,  together 
with  the  verifiable  truth  of  many  of  its  allegations,  forbid  us 
to  treat  it  as  a  mere  party  squib.  In  Part  II.  of  his  criticism, 
the  Serjeant  enumerates  the  following  cases'  in  which  it  is  ad- 
mitted that  a  Subpoena  will  lie,  viz. :  — 

1.  Discovery  of  documents  ; 

2.  Perfecting  of  imperfect  conveyances  for  valuable  con- 

sideration (where  there  was  an  express  promise,  the 
Action  of  Case  lay  at  the  common  law) ; 

3.  Recovery  of  rents  reserved  in  conveyances  of  the  whole 

estate  of  the  grantor  ;  ^ 

4.  Defence  against  unconscionable  claims,    e.g.  when  the 

plaintiff  has  been  sued  at  common  law  on  a  bond 


1  These  were  void  at  Common  Law,  because,  as  the  grantor  had  no  reversion 
after  the  execution  of  the  conveyance,  he  could  not  'reserve'  anything  to  himself. 
Of  course  by  using  the  proper  forms  he  could  have  given  himself  a  rent  charge,  for 
which  an  assise  would  have  lain. 


168    A   SHORT   HISTORY  OF  ENGLISH  LAW 

which  he  has  really  discharged.     (This  was,  probably, 
an  early  case  of  the  '  common  injunction  ') ; 
5.    Performance  of  '  uses.'  ^ 

This  list  agrees  fairly  well  with  the  doggerel  summary  attributed 

to  Sir  Thomas  More  — 

'  Thi-ee  things  are  to  be  judged  in  Court  of  Conscience, 
Covin  (fraud),  accident,  and  breach  of  confidence.' 

But  it  is  noteworthy  that,  as  the  Serjeant  has  no  difficulty  in 
showing,'^  there  were  many  other  hard  cases  for  which  no  remedy 
lay,  either  in  the  Common  Law  courts  or  in  Chancery;  as,  for 
example,  that  of  the  man  in  respect  of  whose  land  a  Fine  with 
proclamations  had  been  levied  by  another  who  knew  perfectly 
well  of  his  opponent's  title,  and  yet  took  no  steps  to  make  him 
aware  of  the  proceedings,  or,  a  still  more  glaring  case,  when  a 
man  had  bought  goods  on  credit  and  died,  and  the  creditor 
could  not  bring  Debt  against  the  debtor's  executors,  because  the 
debtor  would  have  been  entitled  to  '  wage  his  law.'  Thus  it  is 
clear  that  there  was  ample  scope,  despite  the  efforts  of  the 
Chancellors,  for  the  enterprising  law  reformer,  in  the  first  half 
of  the  sixteenth  century. 

Apart  from  these  general  features,  the  period  is  marked  by 
three  events  of  first-class  importance  in  the  history  of  civil 
procedure,  viz :  (i)  The  establishment  of  a  common  jurisdiction 
in  the  three  Common  Law  courts  at  Westminster  by  means  of 
legal  fictions ;  (ii)  the  introduction  of  arrest  on  mesne  process 
as  an  ordinary  step  in  civil  proceedings ;  and  (iii)  the  perfection 
of  the  Action  of  Ejectment  as  a  general  process  for  trying  title 
to  land.  A  few  words  must  be  said  about  each  of  these  events ; 
but  the  first  two  are  so  closely  interwoven,  as  reciprocal  cause 
and  eft'ect,  that  it  will  be  necessary  to  treat  of  them  together. 

It  will  be  known  to  all  students  of  Constitutional  History, 
that,  of  the  three  '  Courts  of  Common  Law  at  Westminster,' 
which,  for  nearly  six  centuries,  administered  the  Common  Law 
in  the  name  of  the  King,  only  one  was,  in  origin,  a  court  of 
general  jurisdiction  for  civil  causes.  This  was  the  Court  of 
Common  Bench,  attributed  to  the  action  of  Henry  II,  Avho, 
according  to  Benedict  of  Peterborough,  selected,  in  the  year 

'  Chaps.  II-VI.  ,  2  Chaps.  VII  and  VIII. 


CIVIL  PROCEDURE   IN  MIDDLE  AGES     169 

117S,  five  persons  from  his  household,  and  directed  that  they 
'should  not  depart  from  the  King's  Court,  but  there  remain  to 
hear  all  the  complaints  of  the  kingdom,  and  do  right ' ;  cases 
of  peculiar  difficulty  being  reserved  for  the  hearing  of  the  King 
himself,  with  the  advice  of  his  wise  men.^  Thus  arose  the  Court 
held  before  '  Our  Justices  at  Westminster,'  the  '  certain  place ' 
chosen  in  obedience  to  article  XVII  of  the  Great  Charter.  In 
theory,  the  King's  or  Upper  Bench,  the  Curia  ad  placita  coram 
Rege  tenenda,  only  exercised  the  reserved  jurisdiction  described 
above,  for  cases  of  peculiar  difficulty,-  and  dealt  with  matters 
in  which  the  Crown  was  peculiarly  interested,  e.g.  the  'prerog- 
ative' writs  of  Certiorari,  Prohibition,  and  the  like,  and  the 
prosecution  of  criminal  offences.  So  too,  the  Exchequer  of 
Pleas,  which,  as  we  have  seen,^  dates  from  1268,  at  first  dealt 
only  with  matters  really  arising  in  the  course  of  the  collection 
of  and  accounting  for,  the  revenue,  as  described  in  the  Dialogue 
cf  ihe  Exchequer.'^ 

The  Common  Bench,  or  Common  Pleas,  then,  was  the  normal 

and  proper  court  for  the  commencement  of  ordinary  civil  process ; 

and,   in   the    absence   of   special    circumstances,    the 

Process  m 

the  Common  forms   of   writ   assume   that   the  defendant   will   be 
^^'^  ordered  to    appear   '  before  Our    Justices  at  West- 

minster.' It  was  not,  however,  very  easy  to  compel  the  defendant 
to  obey  a  writ  of  summons ;  for,  as  we  have  previously  seen,  early 
tribunals  find  themselves  in  the  greatest  possible  difficulty 
in  the  face  of  a  contumacious  defendant.  Apparently,  during 
the  earlier  part  of  our  period,  in  an  ordinary  civil  action  in  the 
Common  Bench,  after  the  service  of  the  summons  by  the  sheriff's 
officers,  and  the  failure  of  the  defendant  to  appear,  the  sheriff 
could  then  'attach'  the  defendant,  i.e.  order  him  to  find  sureties 
('gages  and  pledges')  to  appear;  and,  if  he  refused,  or  broke 
his  pledges,  could  then  by  various  degrees  of  seizure,  distrain 
him  by  all  his  lands  and  chattels  to  appear.^  But  if  these  steps 
proved  unavailing,  there  was,  apparently,  no  power  to  proceed 

iS.C.  131. 

^  This  was,  probably,  the  origin  of  the  jurisdiction  in  appeals  from  the  Common 
Pleas,  which  was  exercised  by  the  Court  of  King's  Bench  until  the  re-organization  of 
the  Exchequer  Chamber  in  1830  (11  Geo.  IV  and  1  Will.  IV,  c.  70). 

=  Ante,  p.  24.  ^  S.C.  168-248. 

*  These  various  forms  are  given  in  the  Registrum  Brevium  {Judicialium)  of  1687, 
at  p.  1.  In  their  somewhat  later  shape  they  may  be  seen  in  Blackstone  Comm.  Vol. 
Ill,  Appx.  III. 


170    A  SHORT  HISTORY   OF  ENGLISH  LAW 

in  the  defendant's  absence ;  and  the  only  thing  to  be  done  was 
to  go  through  the  cumbrous  and  dilatory  process  of  *  outlawing  ' 
the  defendant,  after  which,  if  he  appeared  in  public,  he  could 
be  arrested  by  the  Writ  of  Capias  utlagatum.  But  the  process 
of  outlawry  was  laborious  and  costly,  involving  no  less  than 
five  '  exactions '  at  successive  monthly  County  Courts,  inter- 
spersed with  proclamations,  before  the  issue  of  the  Capias 
utlagatum. 

It  was,  in  all  probability,  this  helplessness  of  the  Common 
Pleas  in  the  face  of  a  contumacious  defendant,  that  gave  the 
^  .  rival  Courts  of  the  King's  Bench  and  Exchequer 
their  opportunity  of  stealing  some  of  the  business 
normally  belonging  to  the  first-named  tribunal.  For  these 
latter  courts,  being  specially  concerned  with  enforcing  the 
King's  claims,  were  armed  with  the  powerful  weapon  of  a  Capias 
ad  respondendum,  i.e.  a  writ  directed  to  the  sheriff,  bidding 
him  arrest  the  defendant  at  once  to  answer  the  plea  of  our 
Lord  the  King.  For  it  was  not  to  be  tolerated,  that  a  person 
accused,  for  example,  of  force  and  arms  against  the  King's  peace, 
should  be  allowed  to  defy  the  tribunal  before  which  he  was 
called  to  account. 

The  King's  Bench,  therefore,  if  the  plaintiff  wished  to  enforce 
a  debt,  offered  him  a  cunning  device.  He  issued  a  writ  based 
on  a  wholly  fictitious  trespass  alleged  to  have  been 
committed  by  the  defendant.  This  trespass,  had  it, 
in  fact,  taken  place,  would  have  given  the  King's  Bench  genuine 
jurisdiction ;  for  all  Trespass,  as  has  been  said,  involves,  techni- 
cally, a  breach  of  the  King's  peace,  and  subjects  the  offender 
to  fine  and  imprisonment.  But,  as  it  had  not,  in  the  case  sup- 
posed, really  taken  place,  and,  moreover,  was  not  the  object  of 
the  action,  the  plaintift'  was  allowed  to  add  {'ac  efiam')  to  his 
claim  in  Trespass,  a  claim  in  Debt  for  his  real  demand ;  and, 
thus,  as  the  action  was  nominally  Trespass,  the  plaintiff  could 
secure  the  defendant's  arrest  by  a  Capias  ad  respondendum. 
When  the  proceedings  came  before  the  court,  the  allegation  of 
a  trespass  was  quietly  dropped,  and  the  case  proceeded  as  though 
the  action  had  originally  been  in  Debt.  Thus  the  plaintiff 
obtained  the  benefit  of  the  superior  process,  while  the  Court  of 
King's  Bench  secured  the  profitable  jurisdiction  in  Debt.  But 
a  simpler  expedient  was  soon  devised. 


CIVIL  PROCEDURE   IN  MIDDLE   AGES     171 

The  right  of  the  King's  Bench  to  proceed  in  Debt  on  a  Writ 
of  Trespass  was  based  on  the  old  estabhshed  doctrine,  that  that 
BUI  of  Court  could  take  summary  proceedings  to  regulate 

Middlesex  ^j^g  affairs  of  all  prisoners  in  the  custody-  of  the  King's 
officers.  Having  been  arrested  for  Trespass,  the  defendant  was, 
de  facto,  in  the  custod}'  of  the  sheriff,  and,  therefore,  came 
within  this  principle. 

But  it  was  easier  still,  and  less  costly,  to  avoid  the  necessity 
for  the  actual  issue  of  a  Writ  of  Trespass,  and  simply  to  assume 
that  the  defendant  was  already  in  the  custody  of  a  royal  officer. 
This,  of  course,  could  only  be  done  with  the  connivance  of  the 
Court ;  but,  this  connivance  being  secured,  the  plaintiff  then 
simply  presented  a  petition  or  Bill,  called  an  'English  Bill' 
from  the  fact  that  it  was  in  English  (whereas  a  writ  was  in  Latin), 
and,  more  usually,  a  'Bill  of  Middlesex,'  from  the  fact  that  tl>e 
King's  Bench  usually  sat  in  Middlesex.  This  Bill  stated/  that 
the  defendant  was  in  the  custody  of  the  Marshal  of  the  King's 
Bench  on  a  plea  of  Trespass  within  the  verge,-  and  that  the  King 
was  petitioned  to  make  him  pay  a  debt  due  to  the  plaintiff. 
Thereupon  a  precept  was  issued  to  the  sheriff  of  Middlesex, 
bidding  him  produce  the  defendant  to  answer  to  the  plea  of 
Trespass  '  and  also  '  (ac  etiam)  to  the  plea  of  debt ;  and,  in  the 
highly  probable  event  of  his  not  being  found  within  the  county 
of  Middlesex,  a  further  writ,  known  as  the  Latitat,  was  issued 
to  the  sheriff  of  the  county  where  he  was  really  believed  to  be, 
or  where,  in  the  picturesque  language  of  the  writ,  '  it  is  sufficiently 
attested  that  the  aforesaid  R.  lurks  {latitat)  and  runs  about.' 
Thus  the  defendant  would  be  arrested ;  and  the  proceedings 
would  continue  in  the  King's  Bench. 

The  Exchequer  acquired  jurisdiction  in  ordinary  cases  by 
an  equally  ingenious  device.  The  normal  process  in  the  Ex- 
The  chequer  was  by   '  suggestion,'  or   '  information,'  i.e. 

Quonunus  giving  notice  to  the  royal  officials  of  a  possible  claim 
on  behalf  of  the  royal  revenue.  This  process  was  apt  to  be 
abused ;  and,  as  will  be  seen  later, ^  special  precautions  were 
afterwards  taken  to  prevent  it  being  adopted  as  a  means  of 
oppression.     A  particular  variety  of  suggestion,  however,  known 

>  The  form  is  given  in  Blackstone  Comm.  Vol.  Ill,  Appx.  III. 

*  I.e.  assault  within  the  verge  of  the  Court,  a  peculiarly  heinous  offence. 

'  Post,  pp.  335,  336. 


172    A   SHORT  HISTORY  OF  ENGLISH   LAW 

as  the  Writ  of  Qiiominiis,'  seems  to  have  been  used  for  no  more 
harmful  purpose  than  the  acquiring  of  jurisdiction  by  the  Court 
of  Exchequer  in  ordinary  civil  cases.  The  fiction  was,  that  the 
plaintiflF  owed  money  to  the  King,  and  the  defendant  to  the 
plaintiff ;  so  that  the  delay  of  the  defendant  to  pay  the  plaintiff 
caused  the  latter  to  be  in  default  to  the  King  —  'whereby  (the 
plaintiff)  is  the  less  {quominus)  able  to  satisfy  Us  the  debts 
which  he  owes  Us  in  Our  said  Exchequer.'  Here,  too,  as  a  claim 
of  the  King  was  involved,  arrest  b}'  the  sheriff  followed  as  a 
matter  of  course ;  and  then  the  proceedings  continued  in  the 
Exchequer. 

It  is  not  to  be  supposed,  that  the  Court  of  Common  Bench 
would  peaceably  stand  by,  and  allow  its  monopoly  to  be  in- 
'  Ac  Etiam'  fringed  in  this  glaring  manner,  without  making  an 
Again  effort  to   retaliate.     Accordingly,   that   Court   seems 

to  have  claimed  original  jurisdiction  in  Trespass  from  a  very 
early  date,^  and,  also  by  means  of  an  '  ac  etiam '  clause,  to  have 
allowed  suitors  to  add  to  a  plea  of  Trespass  a  claim  of  debt  or 
any  other  civil  claim, ^  with  the  consequent  advantage  of  being 
able  to  secure  the  arrest  of  the  defendant  on  mesne  process. 
No  doubt  at  first  the  plaintiff  also  went  through  the  form  of 
issuing  the  ordinary  process  of  '  attachment '  and  '  distringas ' 
also ;  but,  as  Blackstone  informs  us,^  these  steps  were  ultimately 
dropped,  and  the  issue  of  the  writ  of  summons  (or  'original') 
was  followed  immediately  by  that  of  a  Capias  ad  respondendum. 
It  should  be  observed,  also,  that,  by  direct  legislation,  the  power 
of  arrest  on  mesne  process  had  been  extended,  in  1352,  to  the 
actions  of  Debt,  Detinue,  and  Replevin,^  and,  in  1503,  to  the 
comprehensive  action  of  Case,^  which,  as  we  have  seen,^  by  that 

'  The  form  is  given  in  Blackstone  Comm.  Vol.  Ill,  Appx.  III.  It  seems  to  have 
been  founded  on  the  practice  described  in  Sect.  XV  of  Part  II  of  the  Dialogue  of 
Exchequer  (S.C.  237). 

'  By  Fitzhorbert's  time  Trespass  lay  indifferently  in  the  King's  Bench  and  the 
Common  Pleas  (Natura  Brevium,  86  I)  ;  and  see  the  statement  of  Hale,  C.  J.,  in 
his  posthumous  Discourse  Concerning  the  Courts  of  King's  Bench  and  Common  Pleas, 
reprinted  in  Hargravc's  Law  Tracts,  Vol.  I,  p.  367. 

'  Blackstone,  Comm.  Vol.  Ill,  281.  (Blackstone  docs  not  quote  any  authority; 
but  his  statement  is  borne  out  by  the  wording  of  the  statute  of  1661,  to  be  de- 
scribed in  next  period.) 

*  Ihid. 

^  25  Edw.  Ill,  c.  17.  Blackstone  Comm.  Ill,  281,  says  that  it  was  also  extended  to 
the  action  of  Account,  by  the  Statutes  of  Marlbridpo  and  Westminster  the  Second. 
But  the  passages  rjuoted  do  not  bear  out  his  contention. 

«  19  Hen.  VII,  c.  9.  '  Ante,  pp.  136-148. 


CIVIL  PROCEDURE   IN  MIDDLE  AGES     173 

time  included  the  action  on  the  simple  contract,  as  well  as  many 
actions  of  Tort,  and  which  certainl}^  lay  in  the  Common  Bench. 
Thus,  not  only  did  the  three  Common  Law  courts  practically 
acquire  an  identical  jurisdiction  in  civil  cases,^  but,  incidentally, 
the  power  of  arrest  on  mesne  process  became  firmly  fixed  as 
a  normal  step  in  civil  procedure.  It  was  mitigated  only  by  the 
clause  in  a  statute  of  1444,^  which  enacted  that  the  sheriff  and 
other  officers  should  let  out  of  prison  on  'reasonable'  bail,  all 
manner  of  persons  being  in  their  custody  by  force  of  any  writ, 
bill,  or  warrant  in  any  action  personal.  And  even  this  mitigation 
was  soon  severely  restricted  by  evasions,  which  ultimately 
established,  that  not  merely  'common'  or  reasonable,  but 
Special  'special'  bail  might  be  demanded  as  of  right  for  the 

■^  defendant's  appearance  in  actions  of  Debt,  Detinue, 

Trespass  to  goods,  or  Case  (other  than  slander),  if  the  debt  or 
damages  claimed  exceeded  twenty  pounds,  and  that  it  might 
be  insisted  on  by  the  Court,  at  its  discretion  or  on  a  specific 
application,  in  other  cases  such  as  Covenant,  Battery,  Con- 
spiracy, and  False  imprisonment.^  Apparently  Slander  (not 
being  'slander  of  title,'  which  was  not  defamation  at  all,  but  an 
ordinary  action  of  Case)  was  the  one  instance  in  which  'special 
bail'  could  not  be  exacted."* 

The  third  great  change  in  the  civil  procedure  of  this  period 
is  the  invention  and  gradual  development  of  the  action  of 
Ejectment. 

As  was  previously  pointed  out,  in  dealing  with  the  early  history 
of  terms  of  years,^  the  Writ  of  Ejectio  Firmae  was,  originally, 
Ejectio  ^  mere  variety  of  the  great  Writ  of  Trespass,  and, 

Firmae  therefore,  sounded  in  damages  only,   not  in  specific 

recovery.     As  such,  however,  it  remained,  substantially,  the  only 


1  It  is  clearly  assumed  by  the  statute  of  1585  (27  Eliz.  e.  9,  s.  2)  which  made 
appeals  from  the  King's  Bench  lie  to  the  Court  of  Exchequer  Chamber,  that  actions 
of  Debt,  Detinue,  Account,  and  Case,  as  well  as  Ejectment  and  Trespass,  even  when 
between  private  persons,  are  within  the  jurisdiction  of  the  'King's  Bench.'  (It  is 
odd  that,  even  in  Elizabeth's  reign,  the  term  'King's  Bench'  is  retained.) 

2  23  Hen.  VI,  c.  9  (5). 

^  Rules  and  Orders  for  the  Common  Pleas,  made  in  Michaelmas  Term,  1654 
(Cooke,  Rules,  Orders,  and  Notices,  Sect.  XII).  Apparently  this  Rule  was  originally 
made  in  1582  (24  Eliz.).  There  was  an  exception  when  the  defendant  was  sued 
as  heir  or  personal  representative. 

*  This  was,  probably,  because  of  its  recent  adoption  from  the  ecclesiastical  courts 
(see  ante,  pp.   145,  146). 

'  Ante,  p.  90. 


174    A   SHORT  HISTORY  OF  ENGLISH  LAW 

remedy  open  to  the  lessee  for  years/  against  a  mere  stranger, 
until  the  middle  of  the  fifteenth  century;  and,  so  long  as  its 
original  limitations  remained,  the  lessee  for  years  could  hardly 
be  said  to  have  an  estate  in  the  land.  But,  about  the  middle  of 
the  fifteenth  century,^  the  Courts  began  to  toy  with  the  notion 
that  not  merely  damages,  but  the  term  itself  (i.e.  possession 
of  the  land)  could  be  recovered  by  the  Writ  of  Ejectio  Firmae. 
In  an  important  case,  which  came  before  both  the  Benches  in 
1467,^  for  Debt  on  a  lease  made  by  a  man  and  his  wife,  Catesby 
and  Fairfax,  two  eminent  counsel  who  soon  afterwards  became 
judges,  argued  without  protest  from  the  assumption  that,  in 
an  action  of  Ejectment,  the  plaintiffs  could  have  recovered  their 
term.  By  the  year  1481,  the  doctrine  had  become,  apparently, 
unquestionable ;  for  in  that  year  we  find  it  uttered  by  no  less  a 
person  than  the  Chief  Justice  of  the  King's  Bench. ^  The  first 
actual  decision,  however,  is  said  to  have  been  in  the  year  1499, 
when  judgment  was  given  in  Ejectment,  not  only  for  damages, 
but  for  the  recovery  of  the  house  and  appurtenances.^  Fitzher- 
bert,  who  wrote  in  the  first  half  of  the  sixteenth  century,  states 
the  new  rule  without  hesitation  f  and  by  the  second  half  of  the 
sixteenth  century  it  was  in  full  working  order. ^  Thus  the  lessee 
for  years  acquired  full  status  as  a  tenant,  and  was  able  to  recover 
his  term,  both  as  against  a  stranger,  as  well  as  against  the  lessor 
and  the  latter's  feoffees.^ 

But  the    action  of    Ejectment  would  not  have    fulfilled  its 

'  He  had,  of  course,  the  remedy  of  Covenant  and  Quare  Ejecit;  and  by  those 
could  recover  his  term.  But  the  Quare  Ejecit  only  lay  against  the  lessor  and  the 
lessor's  feoffee  (Y.B.  19  Hen.  VI  (1440)  fo.  56,  pi.  19) ;  and  the  Covenant  only 
against  the  lessor  and  his  heirs,  and  when  the  lease  was  under  seal. 

^  The  doubt  is  mooted  by  Choke  (afterwards  a  judge)  in  1454  (Y.B.  33  Hen.  VI, 
p.  42,  pi.   19). 

3  Y.B.  7  Edw.  IV,  fo.  6,  pi.  16. 

^Y.B.  21  Edw.  IV,  fo.  11,  pi.  2. 

^  The  case  is  not  reported ;  but  a  full  copy  of  the  pleadings,  with  a  reference  to 
the  record,  is  given  in  Rastell's  Entries,  at  ff.  252-253.  A  suggestion  has  been  made, 
by  Finlason,  the  editor  of  Reeve's  History  (III,  p.  31  n.),  that  the  dicta  in  the  older 
cases  mentioned  above  have  been  misunderstood;  and  that  the  remedy  of  recovery 
or  the  term  is  much  older  than  1499.  But  the  case  of  1499  was  evidently  regarded 
as  a  leading  authority ;  and,  if  Bellewe  may  be  trusted  (p.  169),  Sir  Robert  Belknap, 
Chief  Justice  of  the  Common  Pleas,  in  1382,  expressly  stated  it,  as  a  matter  of 
general  knowledge,  and  with  the  approval  of  the  whole  Court,  that  nothing  but 
damages  could  be  recovered  by  a  Writ  of  Ejectio  Firmae. 

'  Natura  Brevium,  220  H  (referring  to  the  case  of  1499). 

^  See,  for  examples,  the  cases  reported  by  Dyer. 

*  It  will  be  remembered  that  in  the  year  1529  the  lessee  had  been  given  complete 
statutory  protection  against  fictitious  recoveries  suffered  by  his  lessor  (21  Hen.  VIII, 
c.  15). 


CIVIL  PROCEDURE   IN  MIDDLE  AGES     175 

destiny,  had  it  remained  merely  a  remedy  for  lessees  for  years. 
The  important  thing  about  it  is,  that  it  became,  as  we  have  said, 
a  general  action  to  try  title  to  land,  not  only  for  termors,  but 
also  for  freeholders.  We  have  now  to  see  how  this  result  came 
about. 

In  theory,  of  course,  the  freeholder  was  amply  protected  by 
the  numerous  'real'  remedies  at   his   disposal.     Owing  to  the 

care  with  which  the  Assises  and  the  Writs  of  Entry  ^ 
the  Real         had  been  worked  out,  provision  had  been  made  for 
ctions  every  possible  case.      But,  apparently,  early  in  the  fif- 

teenth century,  these  'real'  remedies  had  become  unpopular, 
statutes  of  Probably  this  result  was  due  to  their  great  technical- 
Forcible         ity,  and  the  consequent  danger  of  choosing  the  wrong 

procedure.  According  to  Sir  Matthew  Hale,^  they 
were  largely  superseded  in  the  later  fifteenth  century  by  proceed- 
ings under  the  Statutes  of  Forcible  Entry .^  These  statutes  were, 
primarily,  of  a  criminal  character  ;  but  the  elaborate  Act  of  1429 
provided  ^  that  the  Justices  should  not  merely  punish  the  offender, 
but  should  restore  possession  to  the  party  grieved.  Inasmuch  as 
this  Act  applied  not  merely  to  persons  making  forcible  entry, 
but  to  persons  (wrongfully)  entering  without  force  and  after- 
wards holding  possession  by  force,  and  inasmuch,  moreover,  as 
it  provided  that  if  the  ejected  party  chose  to  bring  an  Assise 
or  Trespass,  he  might  recover  treble  damages  against  the  offender, 
it  will  be  seen  that  a  fairly  complete  remedy,  of  a  summary 
nature,  was  offered  by  the  statutes  to  the  ejected  freeholder ;  ^ 
though  it  should  be  observed  that,  in  the  case  of  peaceable  entry 
forcibly  held,  the  remedy  on  the  statutes  was  barred  after  three 
years. ^ 

Possibly  it  was  the  last-named  fact  that  rendered  proceedings 

under  the  Statutes  of  Forcible  Entry  ultimately  un- 

Fictitious       popular,  as  the  '  real '  actions  had  also  become.    At  any 

jectment      ^^^^  j^   j^  clear  that,  just  as  proceedings  under  the 

statutes  were  the  favourite  remedy  for  the  recovery  of  land  in  the 

'  Ante,  pp.  49-51.  ^  History  of  the  Common  Law  (ed.   1794),  p.  301. 

'  5  Ric.  II,  St.  I  (1381)  c.  8;    15  Ric.  II  (1391)  c.  2;   8  Hen.  VI  (1429)  c.  9. 

^8  Hen.  VI,  c.  9,  s.  3  (2). 

5  8  Hen.  VI,  c.  9,  s.  7;  confirmed  by  31  Eliz.  (1589),  c.  11. 

^  The  benefit  of  the  statutes  was  extended  to  lessees  for  years,  copyholders, 
guardians  in  chivalry,  and  tenants  by  Elegit,  Statute  Merchant,  and  Statute  Staple, 
by  the  21  Jac.  I  (1623)  c.  15.  The  decision  in  TaUarum's  Case  was  given  on  an 
entry  against  the  statute  of  Richard  II. 


176    A   SHORT  HISTORY  OF  ENGLISH  LAW 

sixteenth  century,  so  the  action  of  Ejectment  was  the  favourite 
remedy  in  the  seventeenth.  The  machinery  which  adapted  it  to 
the  requirements  of  the  freeholder  was  ingenious.  At  first,  the 
intending  plaintiff  made  an  actual  entry  on  the  land,  to  avoid 
the  risk  of  being  proceeded  against  on  a  charge  of  Maintenance, 
to  which  he  would  have  been  liable  if  he  had  attempted  to  aliene 
whilst  actually  out  of  possession.^  His  entry  was  only  momen- 
tary ;  but,  during  its  continuance,  he  handed  a  lease  of  the 
premises  to  a  person  who  had  agreed  to  act  as  nominal  plaintiff 
in  the  action.  The  latter  made  entry  upon  the  premises  under 
the  lease,  and  thereby  acquired  an  estate  for  years  in  the  land. 
He  was  then  ejected,  or  '  ousted,'  either  by  the  genuine  defendant, 
or  by  a  friendly  person  who  had  agreed  to  act  as  such.  In  the 
former  event,  the  nominal  plaintiff  immediately  commenced 
an  action  of  Ejectment  against  the  true  defendant,  founded  on 
the  actual  ouster.  In  the  latter,  he  commenced  it  against  the 
fictitious  defendant,  or  'casual  ejector.'  In  either  event,  the 
validity  of  the  lease  to  the  nominal  plaintiff  necessarily  came  in 
issue;  and  as  this  could  not  be  lawful  unless  the  claim  of  the 
lessor  (the  real  plaintiff)  were  valid,  a  judgment  for  the  plaintiff 
implied  that  the  Court  was  in  his  favour.  Only,  it  will  be 
observed,  that  such  judgment  merely  affirmed  the  claimant's  right 
to  grant  the  lease;  and  therefore,  in  theory,  his  title  could  still 
be  disputed  on  any  ground  that  did  not  involve  this  right. 
Thus,  it  might  be  argued,  in  a  later  proceeding,  that  the  true 
plaintiff  had  only  an  estate  for  life.  But,  in  effect,  the  judgment 
in  Ejectment  was  treated  as  conclusive  of  title ;  because  the 
plaintiff  in  that  action  took  care  to  set  up  his  full  claim. ^  The 
difficulty  that,  when  the  nominal  defendant  was  only  a  '  casual 
ejector,'  the  whole  proceedings  might  be  conducted  without 
the  knowledge  of  the  true  defendant,  was  got  over  by  a  Rule  of 
Court, ^  to  the  effect  that  no  judgment  should  be  given  against 

>  32  Hen.  VII  (1540)  c.  9,  s.  2.  This  provision  was  not  formally  repealed  until 
1897  (Land  Transfer  Act,  1897,  s.  11).  There  had  been  several  earlier  statutes 
to  a  similar  effect. 

'  And  Chancery  would,  probably,  have  granted  an  injunction  against  repeated 
attempts  to  try  the  same  title. 

'  Messrs.  Sedgwick  and  Wait,  to  whoso  admirable  Essay  on  Ejectment  (Select 
Essays  in  Anglo-American  Legal  History,  III,  PP-  611-645)  all  students  of  English 
legal  history  are  deeply  indebted,  say,  that  this  Rule  was  made  in  1662,  and  refer  to 
Cooke's  well-known  Rules  and  Orders.  But  the  writer  cannot  6nd  the  Rule  there. 
It  is  clear,  however,  that  such  a  Rule  was  observed  in  practice  before  the  close  of 
the  period. 


CIVIL  PROCEDURE  IN  MIDDLE   AGES     177 

a  casual  ejector ;  unless  due  notice  of  the  action  had  been  given 
to  the  actual  tenant  in  possession  of  the  land,  to  enable  him  to 
offer  a  genuine  defence,  if  he  wished  to  do  so. 

In  the  event  of  the  tenant  in  possession  wishing  to  defend 
the  action,  he  was  admitted  as  of  course  to  do  so,  upon  indemnify- 
improve-  "^»  ^^^^  'casual  ejector'  for  his  costs  ;  and,  at  first,  he  was 
ment  by  then  able  to  raise  any  objection  to  the  form,  though,  pro- 
bably, not  to  the  genuineness,  of  the  fictitious  plaintiff's 
story.  Quite  at  the  end  of  our  present  period,  however,  a  great 
saving  of  time  and  expense  was  eflfected  by  a  practice,  said  to 
have  been  introduced  by  Chief  Justice  Rolle,  of  compelling  the 
genuine  defendant,  as  a  condition  of  being  allowed  to  defend, 
to  'confess  lease,  entry,  and  ouster.'  ^  These  three  proceedings 
thereupon  became  really  unnecessary,  and  were,  in  fact,  omitted ; 
being  merely  recited  in  the  plaintiff's  statement  of  his  case,  or 
'Declaration.'  Thus,  in  theory,  every  action  of  Ejectment  was 
between  fictitious  or,  at  least,  nominal  parties ;  the  proper  title 
being  'Doe  on  the  demise  of  X  (the  true  plaintiff)  against  Roe' 
(the  casual  ejector)  or,  more  shortly,  'Doe  v.  Roe'  ;  though, 
for  the  sake  of  reference,  the  name  of  the  real  defendant  was 
often  substituted  in  the  report  for  that  of  the  casual  ejector. 

Clumsy  as  it  seems  to  modern  eyes,  this  curious  procedure 
appears  to  have  been  the  universal  method  of  trying  title  to 
land  from  the  close  of  the  present  period,  until  the  great  reforms 
of  1833  and  subsequent  years;  in  other  words,  for  a  period  of 
nearly  two  centuries.  Not  only  did  it  take  complete  possession 
of  the  Courts  in  England ;  but,  as  we  are  informed,^  the  name, 
at  least,  of  the  action  of  Ejectment  passed,  with  other  institu- 
tions of  more  value,  to  the  English  colonies  in  America,  where, 
however,  the  necessities  of  practical  life,  combined  with  the 
stern  Puritan  dislike  of  fictions,  soon  caused  great  modification 
in  the  forms  used. 

It  is  hardly  possible  to  leave  the  period  which  ended  at  the 
Restoration  of  Charles  II,  without  saying  a  few  words  about 

>  The  early  stages  of  this  practice  may  be  traced  in  a  Note  in  Style's  Reports  (p. 
368)  under  the  year  1652.  The  difference  between  the  Upper  (or  King's)  Bench  and 
the  Common  Pleas  should  be  noted.  Manifestly,  the  action  could  be  brought  in 
either  Court.  By  the  end  of  the  seventeenth  century,  the  admission  of  the  true  de- 
fendant by  the  'consent  rule'  had,  apparently,  become  universal  {The  Pradick  Part 
of  the  Law,  3d  ed.   1702,  p.   156). 

"  By  Messrs.  Sedgwick  and  Wait,  in  the  Essay  before  alluded  to  (Select  Essays  in 
Anglo-American  Legal  History,  III,  pp.  611-645). 


178    A   SHORT  HISTORY   OF  ENGLISH  LAW 

one  of  the  most  remarkable  documents  in  English  legal  his- 
tory which  dates  from  the  close  of  that  period, 
the  Little  The  '  Little  '  or  '  Barebones '  Parliament,  summoned 
ar  amen  ^^^  Oliver  Cromwell  to  meet  at  Westminster  on  4th 
July,  1653,  after  the  dissolution  of  the  remains  of  the  Long 
Parliament,  may  have  been  an  unpractical  bod}',  so  far  as  the 
task  of  administration  in  troublous  times  was  concerned.  But  it 
seems  quite  possible  that  the  wealth  of  contumely  and  scorn 
which  has  been  poured  upon  it  was,  originally,  due  quite  as 
much  to  the  fierce  anger  of  vested  interests  against  outspoken 
criticism,  as  to  any  real  vagueness  or  want  of  practical  wisdom 
in  the  plans  of  the  House  itself.  At  any  rate,  the  scheme  of 
reform  prepared  by  the  Committee  'to  consider  of  the  Licon- 
venience.  Delay,  Charge,  and  Irregularity  in  the  Proceedings  of 
the  Law,'  and  ordered  to  be  printed  on  12th  July,  1653,^  reads 
like  a  revelation  of  the  future ;  and  if  it  be  really  true  that  it 
was  prepared  in  the  course  of  a  week,  even  with  the  assistance 
of  eminent  lawyers  outside  the  House,  it  is  a  striking  testimony 
to  the  capacity,  or  at  least  to  the  intelligence,  of  those  members 
of  the  House  who  adopted  it.  For,  of  the  long  series  of  changes 
which  it  recommends,  more  than  two  thirds  have  since  become 
law,  practically  in  the  shape  forecast  by  the  Committee ;  and, 
if  it  appears  somewhat  out  of  place  to  give  a  brief  account  of 
this  scheme  at  the  end  of  a  chapter  on  Civil  Procedure,  it  will 
probably  be  admitted,  that  no  more  fitting  place  for  it  could 
be  found  than  between  the  close  of  the  period  of  which  it  was, 
in  a  sense,  the  final  act,  and  the  commencement  of  that  in 
which,  after  long  delay,  so  many  of  its  proposals  were  at  last 
adopted. 

After  a  brief  preamble,  in  which  the  Committee  proposes  to 
abrogate  fines  on  the  commencement  of  ci^■il  proceedings,  the 
Marriage  scheme  proceeds  to  a  draft  of  a  measure  of  marriage 
^^^  law    reform,    which    recommends    the    establishment 

of  a  system  of  registries  in  which  notices  of  intended  marriages 
shall  be  given,  as  essential  preliminaries  of  valid  celebration. 
Then  follows  a  proposal  for  universal  civil  marriage,  not  before 
the  registrar,  but  before  a  Justice  of  the  Peace.  Not  only 
marriages,  but  births  and  deaths,  are  to  be  entered  in  the  local 
register.     No  person  under  twenty-one  is  to  marry  without  the 

>  It  will  be  found  in  full  in  the  Somers  Tracts,  Vol.  VI,  pp.  177-245. 


CIVIL  PROCEDURE  IN   MIDDLE  AGES     179 

consent  of  parents  or  guardian ;  and  the  age  of  consent  is  fixed 
at  seventeen  for  men  and  fifteen  for  women. 

The  Marriage  Bill,  the  proposals  of  which,  as  will  have  been 
noticed,  have  only  b  en  partially  realized,  is  succeeded  by  the 
Fines  and  draft  of  an  Act  for  the  suppression  of  extrajudicial 
Recoveries  oath,  and,  immediately  afterwards,  by  another  of 
an  Act  for  cutting  off  entails  and  providing  for  'acknowledg- 
ments' in  conveyances  by  married  women.  This  draft,  which 
most  strikingly  resembles  the  measure  actually  passed  into 
law  with  the  same  object  nearly  two  centuries  later, ^  was  framed, 
of  course,  with  the  object  of  abolishing  the  costly  and  cumbrous 
conveyances  known  as  Fines  and  Recoveries.^  It  concludes 
with  certain  useful  provisions  on  the  subject  of  the  liability  of 
lands  for  payment  of  their  deceased  owner's  debts,  which  had, 
likewise,  to  wait  nearly  two  centuries  for  their  realization. 

This  remarkable  draft  is  succeeded  by  a  short  Bill  for  ascer- 
taining 'arbitrary'  fines  on  copyholds,  which,  unfortunately, 
has  never  been  passed,  a  second  for  abolishing  certain  technical 
details  in  the  law  of  tenure  which  made  it  difficult  to  transfer 
reversions,^  and  a  third,  excluding  members  of  Parliament  from 
acting  as  counsel  on  private  lawsuits  during  the  session,  and 
Small  Debts  regulating  pleaders'  fees.  Then  follows  a  wide 
Courts  scheme  for  the  establishment  of  Small  Debts  courts 

throughout  the  country,  under  lay  Commissioners  appointed 
jointly  by  the  Grand  Jury  and  Justices  of  the  Peace  in  each 
county ;  a  scheme  which  was  carried  out  piecemeal  by  the 
erection,  usually  by  private  Acts  of  Parliament,  of  local  Courts 
of  Requests  during  the  eighteenth  and  early  nineteenth  centuries, 
and,  more  effectively,  by  the  later  County  Courts  Acts. 

After  this  come  short  Bills  for  making  void  voluntary  con- 
veyances as  against  creditors,  for  recovery  of  debts  owing  by 
corporations,  and  for  enabling  debts,  or  '  choses-in-action '  to 
be  assigned ;  interspersed  with  more  distinctly  Puritanic  pro- 
posals for  prohibiting  traffic  in  offices,  duels,  bribery,  drunken- 
ness, swearing,  and  Sabbath-breaking.  Many,  though  not  all, 
of  these  proposals  have  since  been  carried  into  effect. 

The  draft  code,  for  such  in  effect  it  is,  concludes  with  a  thorough 

1  3  &  4  Will.  IV  (1833)  c.  74.  ^  Ante,  pp.  112-119. 

'  Some  of  these  recommendations  were  carried  into  effect  in  the  eighteenth 
century  by  the  Act  for  the  Amendment  of  the  Law  (4  &  5  Anne  (1705)  c.  16,  s.  9), 
and  the  Landlord  and  Tenant  Act,  1730. 


180    A   SHORT   HISTORY  OF  ENGLISH  LAW 

overhauling  of  the  machinery  of  legal  procedure,  judicial  and 
Procedural  extra-judicial,  treated  under  jfive  heads.  Under  the 
Reforms  first,  whicli  deals  with  conveyancing,  the  Committee 
proposes  to  set  up  a  universal  Register  of  Titles,  in  which  every 
incumbrance  affecting  land,  and  every  conveyance  dealing  with 
Register  it,  is  to  be  entered.  As  is  well  known,  the  latter  of 
of  Titles  these  objects  was  partially  achieved  in  the  early 
eighteenth  century,  by  the  establishment  of  county  registers 
in  Yorkshire  and  Middlesex ;  ^  while  general  registers  of  judg- 
ments, executions,  and  other  incumbrances  were  set  up  under 
p  various  statutes  ranging  from  the  Revolution  to  the 

end  of  the  nineteenth  century.  Under  the  second 
head,  the  whole  scheme  of  the  probate  of  wills  and  administra- 
tion of  estates  is  to  be  removed  from  the  jurisdiction  of  the 
ecclesiastical  courts,  and  transferred  to  county  officials,  acting 
under  the  control  of  the  county  jurisdictions  proposed  to  be  set 
up  for  the  conduct  of  higher  civil  litigation. 

Under  the  third,  a  drastic  reform  of  Chancery  procedure, 
and  under  the  fourth,  of  that  of  the  Common  Law  courts,  is 
Chancery  proposcd ;  and,  though  these  are,  in  many  respects, 
mon  Law  ^'^^  technical  for  discussion  here,  it  may  be  stated 
Procedure  broadly  that,  while  some  of  their  more  moderate 
suggestions  were,  almost  immediately,  brought  into  operation 
by  Regulations  issued  by  the  Keepers  of  the  Great  Seal  and  the 
common  Law  Judges,^  the  whole  course  of  procedural  reform 
during  the  last  two  centuries  has  been  in  the  direction  indicated 
by  their  proposals.  These  proposals  are  by  no  means  confined 
to  procedure  in  the  strict  sense ;  but  comprise  suggestions  for 
the  abolition  of  survivorship  in  joint-tenancy  (especially  among 
partners),  the  recognition  of  the  right  to  bar  dower,  the  power 
of  excluding  the  principle  of  merger,  by  which  a  smaller  and  a 
larger  im-mediately  succeeding  interest  cannot  be  separately 
held  by  the  same  person  in  the  same  land,  the  abolition  of  '  col- 

1  2  &  3  Anne  (1703)  c.  4  (Yorkshire) ;    7  Anne  (170S)  c.  20  (Middlesex). 

2  A  great  reforming  Order  for  the  Common  Bench  was  issued  directly  after 
the  fall  of  the  Little  Parliament.  It  is  given  in  Cooke's  Rules  Ac.  in  the  Common 
Pleas  (not  paged).  The  Chancery  reforms  were  longer  in  arriving;  but  a  com- 
prehensive set  of  Orders  was  issued  l)y  Lord  Clarendon  (Chancellor)  and  Sir  Har- 
hottle  Grimston  (Master  of  the  Rolls)  shortly  after  the  Restoration.  These 
were  published  separately  by  Pawlet  in  1GG9;  and  are  included  in  the  general 
collection  of  Rules  and  Orders  in  the  High  Court  of  Chancery,  issued  by  Worrall  in 
1739. 


CIVIL   PROCEDURE   IN   MIDDLE  AGES     181 

lateral  warranties,'^  the  admission  of  the  half-blood  heirs  to 
inheritance,  and  the  modification  of  the  rule  of  primogeniture. 
In  no  direction,  however,  is  the  foresight  of  the  Law  Com- 
mittee of  the  Little  Parliament  more  strikingly  vindicated. 
Criminal  than  in  its  proposals  for  the  reform  of  criminal  pro- 
Procedure  cedure.  It  proposed  to  substitute  for  the  barbaric 
peine  forte  et  dure ^  a  simple  admission  of  guilt,^  to  allow  prisoners 
to  be  defended  by  counsel  (at  least  when  counsel  appeared 
against  them),  and  to  have  their  witnesses  examined  on  oath, 
to  abolish  all  penalties  when  death  occurred  by  misadventure,^  to 
modify  the  feudal  doctrine  of  corruption  of  blood  by  attaint 
of  felony,  to  set  convicted  thieves  to  work  with  the  object  of 
compensating  the  persons  from  whom  they  have  stolen,  to  do 
away  with  the  capital  punishment  of  burning,^  to  make  com- 
pensation to  poor  prosecutors  for  loss  of  time  and  trouble,  and, 
in  the  case  of  a  few  most  serious  crimes,  to  reward  persons 
coming  forward  to  prosecute ;  finally,  to  make  provision  for 
the  spiritual  needs  of  prisoners  in  gaol.^  Incidentally,  it  dis- 
posed, in  a  sentence  of  four  lines,  of  a  question  which,  even  to 
the  present  day,  is  in  a  state  of  disgraceful  uncertainty,  viz. 
the  question  whether  a  person  who  has  suffered  loss  by  the 
felonious  conduct  of  another,  may  bring  a  civil  action  for  redress 
before  criminal  proceedings  have  been  taken.  Historically, 
as  we  have  seen,^  there  was  much  justification  for  the  doubt; 
practically,  the  question  could  be  settled  satisfactorily  at  any 
time  by  a  single  section  of  an  Act  of  Parliament.  And  we  have 
waited,  in  vain,  two  centuries  and  a  half  for  its  enactment ! 

»  Ante,  p.  112.  '  Ante,  p.  51. 

^  The  modern  practice,  as  will  appear,  is  to  substitute  a  plea  of  'not  guilty,' 
which  requires  a  trial. 

*  One  of  the  most  curious  survivals  in  English  law  was  that  of  the  'deodand,' 
or  article  which  caused  death  by  misadventure.  Thus,  if  a  man  was  killed  by  a 
falling  beam,  it  was  the  duty  of  the  coroner's  jury  to  find  the  value  of  the  beam, 
in  order  that  the  Crown  might  claim  it  as  a  forfeiture.  In  spite  of  the  recommenda- 
tion of  the  Little  Parliament,  deodands  were  not  formally  abolished  until  1846 
(9  &   10  Vict.  c.  62). 

^  This,  practically,  was  confined  to  women  convicted  of  treason,  high  or  petty. 

^  It  must  not  be  supposed,  however,  that  the  Committee  showed  itself  to  be 
entirely  free  from  the  superstitions  of  its  age  or  the  special  defects  of  Puritanism. 
The  punishment  of  death  is  freely  distributed;  and  mutilation  of  the  face  and 
head  is  prescribed  for  perjury.  But  the  sense  of  mercy,  as  well  as  of  justice,  shows 
itself  in  the  proposal  to  abolish  the  death  penalty  for  horse-stealing  and  pocket- 
picking,  and  in  the  provision  that  no  accused  person  shall  be  called  upon  to  pay 
any  fee  until  conviction,  and  no  acquitted  person  at  all. 

'  Ante,  pp.  155,  156. 


182    A   SHORT   HISTORY   OF  ENGLISH  LAW 

All  the  procedural  reforms  projected  by  the  Committee  were 
accompanied  by  a  rigid  tariff  of  fees,  issued  with  the  object 
of  reducing  the  cost  of  legal  proceedings ;  and  it  may  be 
Failure  of  ^^^^  ^^^^  hostility  aroused  by  its  Report,  and  the  obliv- 
the  Report  ^qj^  j^^q  which  it  soon  fell,  were  due,  more  than  to  any 
other  cause,  to  the  official  hostility  aroused  by  this  feature. 
Whatever  the  cause  or  causes,  the  fact  remains  that,  after  a  few 
spasmodic  efforts  at  reform  in  the  reigns  of  William  and  his 
immediate  successor,  of  which  some  account  will  be  given  in  their 
proper  order,  Parliament  settled  down,  so  far  as  legal  questions 
were  concerned,  to  the  almost  unbroken  slumber  of  the  eighteenth 
century,  and  the  first  quarter  of  the  nineteenth.  Then  indeed, 
as  we  shall  see,  law  reform  came  like  a  river ;  and  has  never 
since  ceased  to  flow.  As  has  been  previously  said,  the  almost 
complete  failure  of  the  scheme  of  the  Little  Parliament  is  generally 
attributed  to  its  unpractical  character.  But  it  is  difficult  to 
suppose  that  suggestions  which  have,  almost  unconsciously, 
been  adopted  by  the  most  enlightened  reformers  of  modern 
times,  could  ever  have  been  really  unpractical.  It  is  far  more 
likely,  that  the  profound  hostility  produced  by  the  more  extreme 
manifestations  of  the  Puritan  movement  re-acted  against  the  pro- 
posals of  the  wiser  and  better  members  of  the  party,  and  con- 
demned them  to  two  centuries  of  ostracism. 


PERIOD   IV 

THE   RESTORATION   TO  THE   PRESENT   DAY 
1661-1911 


AUTHORITIES 
Statutes  of  the  Realm. 

Statutory  Rules  and  Orders  (prior  to  1890 
revised,  afterwards  in  full). 

Reports  of  judicial  decisions  (see  post, 
pp.  190-195). 

Rules  and  Orders  of  the  Supreme  Court 
(annually  published  with  full  notes). 

Books  of  Entries  (see  p.  197). 


TEXT-BOOKS 

Blackstone.  Commentaries  on  the  Laws 
of  England  (Clarendon  Press,  1765). 
[This  work  has  been  re-edited  from 
time  to  time  ;  and  its  best  known 
form  is  that  now  appearing  under 
the  name  of  the  late  Judge  Stephen 
(Butterworth,  15th  edition,  1908) .] 


Bowen,  Lord.  Progress  .  .  .  in  the  Vic- 
torian Period  (Select  Essays  in  Anglo- 
American  Legal  History,  I,  516-557). 

Dicey,  A.  V.  Law  and  Public  Opinion 
in  England  (Macmillan,  1905). 


Scrutton,  T.  E.  History  of  the  Law  Mer- 
chant (Select  Essays  in  Anglo-Amer- 
ican Legal  History,  III,  7-15). 

Stephen.  History  of  the  Criminal  Lawl 
of  England,  chapters  xi-end  (Mac- 
millan, 188.3,  3  vols.). 

Underhill,  A.  Changes  in  the  Law  of  Real 
Property  (Select  Essays  in  Anglo- 
American  Legal  History,  III,  673- 
719). 

Veeder,  Van  V.  A  Century  of  English. 
Judicature  (Select  Essays  in)  (Anglo- 
American  Legal  Plistory,  I,  730-836). 
The  English  Reports,  1537-1865 
(Select  Essavs  in  Anglo-American 
Legal  History,  II,  123-168). 


Wilson,   Sir  R.  K.     History  of  Modern 
English  Law  (Rivingtons,  1875). 


CHAPTER   XIII 

MODERN  AUTHORITIES  AND  THE  LEGAL 
PROFESSION 

THE  process  of  specialization  tends,  almost  inevitably,  to 
narrow  the  sources  from  which  the  rules  of  any  science 
are  drawn ;  and  English  law  is  no  exception  from  this 
rule.  We  have  seen  that,  in  its  earlier  stages,  judges  and  lawyers 
borrowed  freely  from  all  sorts  of  authorities  which  appeared 
to  have  any  bearing  on  the  subject  under  discussion.  Ancient 
customs,  maxims  of  the  wise,  royal  decrees,  oflBcial  regulations, 
text-books,  even  foreign  systems  such  as  those  of  the  Corpus 
Juris  Civilis  and  the  Corpus  Juris  Canonici,  were  called  in  aid; 
no  less  than  Acts  of  Parliament  and  formal  judicial  decisions. 

So  long  as  such  practices  prevailed,  the  liberty  of  choice 
open  to  a  tribunal,  and  the  doubt  prevailing  as  to  the  com- 
parative weight  of  these  rival  authorities,  must  have  left  much 
to  the  discretion  or  idiosyncrasy  of  the  Court  in  each  case. 
Parliament-  ^^^^  ^^^^  ^^  ^^^^  great  changes  which  took  place  in 
ary  Sov-  the  last  century  of  the  period  last  considered  was  the 
rapid  sweeping  away  of  all  rival  authorities,  and  the  ulti- 
mate concentration  of  the  power  of  the  State  in  the  King  in 
Parliament.  In  the  earlier  stages  of  the  struggle,  indeed,  it 
seemed  as  though  the  Crown  would  emerge  sole  victor ;  but 
the  effect  of  the  Civil  War  was  to  bring  about  a  compromise, 
in  which  sovereign  authority  ultimately  vested,  not  in  the 
Crown  alone,  nor  in  the  Houses  alone,  but  in  the  Crown  and 
Parliament  acting  together.  And,  though  subsequent  develop- 
ments have  shown  that,  when  the  sovereign  is  a  composite 
body,  there  may,  and,  indeed,  generally  will,  be  a  struggle  for 
supremacy  within  that  body  itself,  yet,  for  legal  purposes,  the 
verdict  of  the  Civil  War,  which  decided  the  sovereignty  to  be 
in  the  Crown  and  Parliament,  is  still  undisturbed.  At  the 
present  day,  the  only  ultimate  source  of  law  is  the  King  in 
Parliament ;   though,  by  force  of  a  tradition  which  is  older  than 


186    A  SHORT  HISTORY  OF  ENGLISH  LAW 

Parliament  itself,  the  Crown,  within  certain  well-defined  limits, 
and  the  Courts,  within  limits  less  well  defined,  still  exercise 
their  ancient  prerogative  of  declaring,  formulating,  and,  we 
might  almost  say,  making,  new  law.  No  one  doubts,  however, 
that  the  action  of  the  Crown  and  of  the  Courts  in  this  respect 
is  liable  to  be  overruled  by  the  action  of  Parliament ;  and,  in 
fact,  not  a  few  modern  statutes  have  been  passed  expressly  for 
the  purpose  of  altering  the  law  as  laid  down  by  judicial  decisions. 

Obviously,  therefore,  the  chief  authority  for  the  law  of  the 
period  we  are  now  approaching  is  the  Statute  Book;  and  a 
Acts  of  glance  at  the  shelves  of  any  law  library  will  show 

Parliament  j^q^^  enormously  this  source  of  authority  has  increased 
in  bulk  in  recent  years.  Roughly  speaking,  the  whole  of  the 
public  statutes  passed  in  the  period  which  lasted  from  the 
birth  of  Parliament,  in  the  late  thirteenth  century,  dow^n  to  the 
restoration  of  Charles  II  (a  period  of  about  400  years)  occupy 
less  than  three  quarto  volumes  in  the  common  edition  of  the 
Statutes  at  Large.  The  statutes  from  1660  to  1868  (a  period 
of  about  half  that  length)  occupy  rather  more  than  forty-three 
volumes  of  the  same  edition.  Of  this  vast  bulk,  as  well  as  of 
the  numerous  Acts  of  Parliament  passed  since  1868,  every  word 
which  has  not  been  expressly  or  by  implication  repealed  by 
a  later  statute,  is  binding  law  of  the  highest  authority.  What- 
ever doubts  may  have  existed  in  the  mind  or  language  of  Coke 
and  his  contemporaries,  with  regard  to  the  limits  of  Parliamen- 
tary authority,  disappeared  in  the  Civil  War ;  and  Blackstone, 
no  worshipper  of  representative  institutions,  in  his  immortal 
work,^  fully,  though  not  without  reluctance,  accepts  the  doctrine 
that,  however  apparently  absurd  and  unjust  an  Act  of  Parlia- 
ment, yet  if  the  words  are  clear,  'there  is  no  court  that  has 
power  to  defeat  the  intent  of  the  legislature.' 

Happily  for  the  student  of  existing  law  (though  the  historian 
is  less  relieved  by  the  practice).  Parliament  freely,  and,  of 
recent  years  systematically,  by  means  of  Statute  Law  Revi- 
sion Acts,  has  repealed  much  of  its  former  enactments ;  and  a 
convenient  edition  of  The  Statutes  Revised,  issued  by  the  Statute 
Law  Revision  Committee,  enables  the  practitioner  to  distinguish 
readily  between  dead  and  living  statutes.  Be  it  observed, 
also,  that  though  the  ipsissima  verba  of  an  unrepealed  statute 

1  Comm.,  Vol.  I,  p.  91. 


MODERN  AUTHORITIES  187 

are  binding,  even  on  the  Crown  if  the  Crown  be  expressly  named 
therein,  it  is  not  permissible  for  legal  purposes,  to  go  behind 
a  statute  to  the  discussions  in  Parliament  which  preceded  its 
passing.^  This  tempting  addition  to  the  possibilities  of  forensic 
argument  has  always  been  sternly  repressed  by  the  Courts, 
which  have  also  laid  it  down,  that  the  side  notes  usually  appear- 
ing in  the  authoritative  or  King's  Printer's  editions  of  the 
statutes,  are  of  no  authority,  even  for  the  interpretation  of  a 
statute.^  On  the  other  hand,  the  preamble,  and  the  title,  are 
now  parts  of  a  statute ;  ^  and  are,  indeed,  often  valuable  guides 
to  the  policy  of  the  enactment. 

Midway   between  purely  Parliamentary  and  purely  judicial 
legislation,  come  the  various  Orders  in  Council,  Proclamations, 
Orders  in      and     other     formal     legislative     and     administrative 
°^^^  enactments    issued    by    the    executive    authority    in 

the  State.  These  are  capable  of  simple  and  instructive  classi- 
fication. In  the  first  place,  they  are  either  (a)  prerogative 
p  .       or   (6)   issued  under  Parliamentary  authority.     The 

former,  now  rare  in  number,  were  at  one  time,  as 
every  student  of  English  Constitutional  History  knows,  the 
source  of  much  debate  and  feeling.  They  played  no  incon- 
siderable part  in  the  differences  of  opinion  which  led  to  the 
Civil  War;  they  were  conspicuous  in  the  Revolution  of  1688. 
The  net  result  of  those  two  important  events  is :  (1)  That  any 
purely  prerogative  Order  or  Proclamation  inconsistent  with  or 
derogating  from  the  express  terms  of  an  Act  of  Parliament,  is 
wholly  void;  but,  (2)  that,  subject  to  this  rule,  the  Crown's 
ancient  rights,  in  so  far  as  they  have  actually  been  exercised 
with  fairly  definite  continuity,  still  remain.  In  fact,  a  certain 
number  of  Prerogative  Orders  are  from  time  to  time  published.^ 
But,  even  where  the  rights  still  exist,  as,  for  example,  in  the 
case  of  the  government  of  the  navy,  the  army,  and  the  '  Crown 
Colonies,'  and  the  summoning  and  dissolution  of  Parliament, 

>  For  a  recent  statement  of  this  rule,  see  R.  v.  West  Riding  C.C.  [1906]  2  K.B. 
at  p.  716.  Of  course  the  rule  does  not  prevent  consideration  of  the  circumstances 
which  led  to  the  passing  of  a  statute. 

2  This  at  any  rate  was  the  older  view.  But  it  appears  that  the  recent  (but  not 
uniform)  practice  of  printing  the  marginal  notes  on  the  Parliament  Roll,  has  given 
rise  to  some  doubts  (Sutton  v.  Sutton  (1882)  22  Ch.  D.,  at  p.  513). 

'  Income  Tax  Commrs.  v.  Pemsel  [1891]  A.C.,  at  p.  543  (preamble)  ;  Fielding  v. 
Morley  {Corpn.)  [1899]  1  Ch.,  at  pp.  3,  4  (title). 

*  They  now  appear  as  an  Appendix  to  the  Statutory  Rules  and  Orders.  This 
has  been  the  practice  since  1893. 


188    A  SHORT  HISTORY  OF  ENGLISH  LAW 

they  are  often  now  exercised  under  express  Parliamentary 
authority  —  a  fact  which  much  diminishes  their  'prerogative' 
character.  It  is,  also,  highly  improbable,  that  any  exercise 
of  this  prerogative  authority  in  new  directions  would  now  be 
tolerated  by  Parliament ;  even  though  that  exercise  did  not 
conflict  with  the  express  provisions  of  an  Act  of  Parliament. 

The  second,  and  far  larger  group,  of  Executive  'Orders' 
which,  in  their  operation,  resemble  Acts  of  Parliament,  are 
Pariia-  tliose  which  are  made  under  the  express  authority 

mentary  ^f  Parliament.  Owing  partly  to  the  necessity  for 
leaving  the  application  of  discretionary  legislation  to  the  Execu- 
tive, but  still  more  to  the  impossibility  of  discussing  details 
in  an  overworked  Parliament,  it  has  become  increasingly  common 
for  Parliament  to  delegate,  either  to  the  Crown  (i.e.  the  Execu- 
tive as  a  whole)  or  even  to  the  jMinister  at  the  head  of  the  de- 
partment charged  with  carrying  out  the  Act,  the  power  of 
making  Rules  or  Orders  under  it.  These  Rules  and  Orders 
are,  in  effect,  so  long  as  they  keep  within  the  authority  pre- 
scribed by  their  respective  Acts,  themselves  Parliamentary 
statutes,  and  are  enforced  by  the  Courts  as  such.  It  is,  of 
course,  in  theory,  possible  to  raise  against  any  of  them  the 
plea  of  ultra  vires;  but  they  are  usually  drawn  with  sufficient 
skill  to  render  such  an  attack  hopeless.  They  are  now  pub- 
lished periodically  by  royal  authority ;  ^  and  their  bulk  bids 
fair  soon  to  rival  that  of  the  Statute  Book.  Like  the  statutes, 
they  are  also  periodically  revised  by  authority.  The  difference 
between  Orders  made  by  the  Crown  in  Council  and  those  made 
by  a  single  Minister,  is  more  apparent  than  real.  For,  in  the 
former  case,  as  in  the  latter,  the  form  and  contents  are  virtually 
settled  by  the  departments  concerned ;  the  approval  by  the 
Privy  Council  is  a  pure  formality. 

Technically  on  the  same  legal  footing  as  the  modern  Statutory 
Orders  in  Council,  but  in  fact,  and  historically,  inclining  some- 
Rules  and  what  heavily  towards  judicial  legislation,  are  the 
Orders  of  various  Rules  and  Orders  affecting  the  practice  of  the 
Courts,  which  have  from  time  to  time  been  published. 
These  go  back  for  a  long  period  in  English  legal  history ;  and  it 
is  impossible,  without  further  research  into  the  archives  of  the 
fourteenth  century,  to  state  definitely  when  they  began.     Among 

'  Pursuant  to  the  Rules  Publication  Act,  1893,  s.  3. 


MODERN  AUTHORITIES  189 

the  oldest  are  the  General  Orders  (as  distinct  from  decrees 
affecting  only  particular  cases)  made  by  the  Chancellors  for  the 
regulation  of  Chancer}'  procedure ;  and  it  may  have  been  that, 
until  this  example  of  prerogative  legislation  had  been  set  by  the 
holders  of  the  Great  Seal,  the  judges  of  the  Common  Law 
courts  did  not  venture  to  exercise  similar  powers.  At  any  rate, 
while  the  known  Chancery  Orders  go  back  to  1388,^  the  oldest 
Common  Law  Rules  (viz.  those  of  the  Common  Pleas)  -  date 
only  from  1457 ;  but  the  oldest  of  these  latter  refers  clearly 
to  still  older  Rules,  which  seem  to  have  disappeared.  The 
oldest  published  Rules  of  the  King's  Bench  appear  to  be  of 
1604;^  but  it  is  more  than  probable  that  these  are  not  in  fact 
the  first  made.  The  oldest  Exchequer  (Plea)  Rules  known  to 
the  writer  date  from  1571 ;  but  these  were  issued  by  the  Lord 
Privy  Seal,  not  by  the  Barons.'*  Other  Exchequer  Orders, 
undated,   were  published  in   1698.^ 

As  has  been  suggested,  these  Rules  and  Orders  appear  to 
have  been  for  long  issued  by  the  Chancellor  and  Justices  on 
their  own  responsibility,  as  controllers  of  the  business  of  their 
courts ;  and,  so  long  as  they  stood  in  that  position,  they  be- 
longed entirely  to  the  judicial  branch  of  legal  authority.  But, 
as  with  the  Crown,  so  with  the  judges.  Parliament  began 
to  look  with  more  and  more  jealousy  on  any  rival  in  the  busi- 
ness of  legislation ;  and,  as  it  was  clearly  advisable  not  to  with- 
draw in  fact  from  the  judges  the  very  necessary  function  of 
issuing  Rules  of  Practice,  Parliament,  in  the  first  half  of  the 
nineteenth  century,  began  definitely,  as  in  the  case  of  the  Crown, 
to  authorize  the  judges  to  exercise  it.  A  beginning  was  made 
with  the  Civil  Procedure  Act,  1833,''  which  authorized  any 
eight  of  the  Common  Law  judges  (including  the  three  Chiefs) 
to  make  Rules  for  the  reform  of  pleading ;   and  the  step,  having 

1  These  are  collected  in  Orders  of  the  High  Court  of  Chancery,  by  G.  W.  Sanders 
(Chief  Secretary  at  the  Rolls),  and  published  in  1845  (Maxwell). 

2  The  Rules  and  Orders  of  the  Common  Pleas,  from  1457-1743,  were  published 
anonymously  in  the  latter  year  (Lintot)  ;  but  an  earlier  collection,  from  1457  to  1741, 
was  annexed  to  Sir  George  Cooke's  Reports  and  Cases  of  Practice  in  the  Court  of 
Common  Pleas,  published  in  1742. 

'  Published  by  the  anonymous  compilers  of  the  Rules  of  the  Common  Pleas,  and 
bound  up  with  them  in  the  edition  of  1747. 

*  These  Orders  were  confirmed  by  statute  in  1604  (1  Jac.  I,  c.  26). 

^  These  Orders  are  bound  up  with  the  Ordines  Cancellariae  of  1698.  They  deal 
chiefly  with  Equity  business. 

« 3  &  4  WiU.  IV,  c.  42,  s.  3. 


190    A   SHORT   HISTORY  OF  ENGLISH  LAW 

been  found  beneficial,  was  repeated,  with  wider  reach,  in  the 
year  1850.^  These  two  statutes,  which  were  temporary  in 
their  effect,  were  incorporated,  with  many  additional  powers, 
into  the  Common  Law  Procedure  Acts  of  1852  and  1854.-  Mean- 
while, in  the  year  1850,  a  similar  provision,  with  a  limited 
scope,  had  been  introduced  into  the  Chancery  Amendment 
Act  of  that  year;^  empowering  the  Chancellor,  with  the  con- 
currence of  the  Master  of  the  Rolls  and  one  of  the  Vice-Chancel- 
lors,  to  make  General  Rules  and  Orders  for  carrying  out  the 
objects  of  the  Act.  Li  the  Chancery  Amendment  Act  of  1858, 
this  power  was  extended  to  cover  virtually  the  whole  procedure 
of  the  Court ;  '^  the  Rule-making  body  being  enlarged  to  include 
the  newly  created  Lords  Justices  of  Appeal  in  Chancery.  Under 
this  power,  the  great  Consolidated  Orders  of  18G0  were  issued ; 
and  thus  the  way  made  easier  for  the  reform  undertaken  by  the 
Judicature  Act  of  1873.  An  account  of  this  measure  must  be 
reserved  for  a  future  chapter ;  ^  here  it  is  sufficient  to  say,  that 
it  contains  provision  ^  for  a  judicial  Council  consisting  of  the 
judges  of  all  the  tribunals  incorporated  into  the  new  Supreme 
Court  of  Judicature,  with  powers  to  issue  Rules  and  Orders 
regulating  the  practice  of  all  branches  of  the  Court.  This 
power  has  been  full}'  and  constantly  exercised  ever  since  the 
Judicature  Acts  came  into  force  in  1875 ;  and  now  the  Rules 
and  Orders  of  the  Supreme  Court,  annually  republished  with 
copious  notes  and  comments,  are  as  necessary  for  the  practitioner 
as  the  Statutes  of  the  Realm  or  the  Law  Reports. 

Mention  of  the  Law  Reports  brings  us  naturally  to  the  last 
of  the  great  sources  of  legal  authority  at  the  present  day.  We 
Judicial  have  seen  '^  that  the  doctrine  of  judicial  precedent 
had  been  fully  established  in  the  preceding  period, 
through  the  agency  of  the  Year  Books,  those  anonymous  com- 
pilations in  which  the  decisions,  and  even  the  dicta,  of  the  Courts 

>  13  &  14  Vict.  c.  16.  2  Act  of  1852,  ss.  223-225;    Act  of  1854,  ss.  97-98. 

'  13  &  14  Vict.  c.  35,  ss.  30-32.  « 21  &  22  Vict.  c.  27,  ss.  11-12. 

'  Post,  pp.  364-371. 

*  36  &  37  Vict.  c.  66,  ss.  68-74,  repealed  before  coming  into  operation  by  s.  33, 
and  replaced  by  ss.  17-21  of  the  Judicature  Act,  1875,  itself  subsequently  amended  by 
B.  17  of  the  Appellate  .Jurisdiction  Act,  1876,  and  by  s.  19  of  the  .Judicature  Act, 
1881.  The  present  authority  is  the  Judicature  (Rule  Committee)  Act,  1909,  by 
virtue  of  which  statute  the  Rule  Committee  now  includes  (in  addition  to  eight 
judges)  two  members  of  the  General  Council  of  the  Bar,  one  member  of  the  Coun- 
cil of  the  Law  Society,  and  one  other  solicitor. 

'  Ante,  pp.  78,  79. 


MODERN  AUTHORITIES  191 

were  stored  up,  by  unknown  hands,  for  reference  and  quota- 
tion in  the  argument  of  cases.  We  have  seen  also,  how  these 
anonymous  reports  gave  way,  in  the  middle  of  the  sixteenth 
century,  to  the  nominate  works  of  Dyer,  Leonard,  Plowden, 
Coke,  Croke,  and  others.^  Nor  can  there  be  any  serious  doubt 
that,  with  due  allowance  for  the  somewhat  lax  canons  of  criti- 
cism which  prevailed  until  a  recent  date,  it  was  fully  admitted 
before  the  end  of  the  last  period,  that  a  decision  of  a  Court 
of  co-ordinate  or  highdr  jurisdiction  was  binding  on  its  successors 
and  inferiors.  Probably,  too,  the  three  superior  Courts  of 
Common  Law,  though  technically  independent  of  one  another, 
respected  one  another's  decisions ;  while,  if  there  was  no  inter- 
change of  authority  between  the  Common  Law  and  the  Equity 
tribunals,  this  was  because,  in  theory  at  least,  there  could  be 
no  common  ground  between  them. 

The  flow  of  nominate  reports  continued  with  unabated  vigour 
after  the  Restoration ;  the  only  official  restriction  on  the  output 
The  '  Au-  ®^  rival  volumes  being  that  imposed  by  the  Licensing 
thorized^  Act  of  1662.  With  this  statute,  which  plays  an  impor- 
tant part  with  the  history  of  copyright,  we  shall  have 
to  deal  in  a  later  chapter.^  Here  it  is  sufficient  to  say  that, 
by  its  provisions,  all  law  books  required  the  license  of  the  Lord 
Chancellor  or  one  of  the  Chiefs  of  the  superior  Courts  of  Common 
Law ;  and  whoever  is  familiar  with  the  Reports  of  the  later 
seventeenth  century  in  the  original  editions  will  recognize  the 
solemn  Imprimatur  prefixed  so  conspicuously  to  them,  and 
will  note  also,  that  the  prudent  reporter  did  not  confine  himself 
to  the  express  directions  of  the  Act,  but  took  care  to  get  the 
signatures  of  as  many  as  possible  of  the  judges  of  the  tribunals 
whose  decisions  he  reported. 

It  is  a  curious  testimony  to  the  conservatism  of  the  legal 
profession,  that,  long  after  the  refusal  of  Parliament,  in  1695, 
to  renew  the  Licensing  Act,  it  continued  to  be  the  practice  of 
the  reporters  to  obtain  judicial  authority  for  their  efforts.  The 
volumes  of  Vernin,  Levinz,  and  Lutwyche,  all  published  after 
1695,  are  still  adorned  by  the  judicial  license ;  and,  long  after 
the   formal   license  had  disappeared,   the   race   of   '  authorised 

1  The  older  tradition  of  anonymity  lingered  in  the  publications  known  familiarly 
as  Reports  in  Chancery,  Cases  in  Chancery,  and  Equity  Cases  Abridged.  But  these 
were,  in  some  cases  at  least,  mere  abstracts  of  nominate  reports. 

"  Post,  pp.  277,  278. 


192    A  SHORT  HISTORY  OF   ENGLISH  LAW 

reporters'  continued  to  flourish.  It  must  not  be  supposed, 
however,  that  the  judicial  Hcense  or  authority  afforded  any 
official  guarantee  of  the  accuracy  of  the  reports  which  it  adorned. 
Save  for  a  very  small  exception,  hereafter  to  be  noticed,  there 
never  has  been  in  England  any  official  publication  (in  the  strict 
sense)  of  law  reports.  But  it  was  well  understood  that  the 
'authorised  reporters'  enjoyed  in  a  special  way  the  favour  of 
the  courts  to  which  they  were  attached ;  and  it  is  obvious  to 
every  lawyer  that  judge  and  reporter,  if  harmonious,  could 
be  useful  to  one  another  in  many  ways  which  would  tend  to 
improve  the  quality  of  the  reporter's  work.^ 

It  was  not  until  the  beginning  of  the  nineteenth  century  that 
there  was  any  apparent  break  in  this  individualist  system. 
Anonymous  ^^t  from  the  year  1823  onwards,  and  at  frequent 
Series  intervals,   there   appeared,   usually   as   a   publisher's 

enterprise,  a  series  of  anonymous,  or,  at  least,  quasi-anonymous 
reports,  the  chief  raisons  d'etre  of  which  seem  to  have  been  the 
length  and  prolixity  of  the  'authorised'  reports,  and  the  delay 
w^hich  occurred  in  their  appearance.  The  first  of  these  series 
was  the  Law  Journal  Reports,  which,  with  a  literary  supplement 
entitled  The  Law  Advertiser  (afterwards  known  as  The  Law 
Journal),  made  its  appearance  in  1823,  and  continues  to  flourish 
to  the  present  day.^  It  was  followed  by  the  Jurist,  which, 
starting  as  half  magazine,  half  gazette,  in  1837,  became,  from 
1841  till  its  decease  in  1866,^  purely  a  reporter.  iVlmost  con- 
temporaneously with  the  Jurist,  viz.  in  1837,  appeared  The 
Justice  of  the  Peace,  a  combination  of  magazine  and  reporter 
which,  as  its  name  implies,  deals  exclusively  with  magisterial 
business.  The  decisions  reported  by  it  are,  however,  not, 
as  might  be  rashly  supposed,  those  of  the  Justices  of  the  Peace, 
which  are,  of  course,  of  no  judicial  authority,  but  of  the  superior 
Courts  reviewing  magisterial  decisions,  or  deciding  on  matters 
of  special  interest  to  Justices. 

'  Useful  information  regarding  the  various  nominate  reporters  will  be  found  in 
Wallace's  The  Reporters  Arranoed  and  Characterized  (4th  edn.  Boston,  U.S.A.,  1882). 
A  summary  of  dates  and  chronological  lists  under  the  various  Courts  will  be  found  in 
a  handy  form  in  Sweet  &  Maxwell's  Lawyers'  Reference  Book  (1907),  and  Stevens  & 
Haynes'  Alphabetical  Catalogue  of  the  Reports  of  Cases  (1875).  These  little  works 
contain  also  lists  of  abbreviated  citations,  regnal  years,  &c.,  which  will  be  found 
indispensable  to  the  student  of  legal  history.  Soule's  Lawyer's  Reference  Manual 
(Boston,  U.S.A.,  1883)  is  a  larger  work  with  similar  objects,  which  includes  the 
American  reporters. 

*  A  'New  Series'  began  in  1832.  '  A  'New  Series'  began  in  1855. 


MODERN   AUTHORITIES  193 

Then  came  the  Law  Times  in  1845,  at  first  with  reports  and 
general  matter  mixed,  but,  since  the  commencement  of  its 
'New  Series'  in  1859,  in  separate  volumes.  It  still  flourishes. 
The  Weekly  Reporter,  first  published  in  1852,  with  a  view  of 
giving  brief  and  speedy  notes  of  current  decisions,  was  incor- 
porated in  1857  into  the  newly-founded  and  still  flourishing 
Solicitors'  Journal  and  Reporter.  Finally,  in  1884,  commenced 
the  excellent  series  of  Times  Law  Reports,  which,  published  weekly 
during  the  sittings  of  the  Courts,  give  a  rapid  and  yet  careful 
account  of  current  legal  business,  and,  also  in  1884,  the  solitary 
example  of  official  law  reporting  known  to  English  legal  history, 
viz.  the  Reports  of  Patent  Cases,  issued  as  a  supplement  to  The 
Journal  of  the  Board  of  Trade.  But  the  greatest  event  in  the 
modern  history  of  English  law-reporting  has,  undoubtedly, 
been  the  foundation,  in  the  year  18G4,  of  the  series  known  as 
The  Law  Reports. 

It  appears  from  the  interesting  account  of  this  movement, 
written  by  Mr.  Daniel,^  one  of  its  most  active  promoters,  that 
The '  Law  ^^^^  multiplicity,  inconsistency,  want  of  authen- 
Reports'  tlcity,  delay,  and  expense  of  the  many  competing 
reports  published  in  the  middle  of  the  nineteenth  century,  had 
for  some  time  given  rise  to  a  feeling  in  favour  of  reform.  The 
difficulties  in  the  way  were  obvious.  Not  merely  did  the  whole- 
some independence  of  the  English  Bar  react  strongly  against 
any  proposals  for  an  official  system ;  but  the  subject  bristled 
with  vested  interests  (always  tenderly  regarded  by  lawyers), 
of  reporters,  publishers,  and  printers.  Nevertheless,  so  great 
were  the  practical  inconveniences  of  the  unregulated  condi- 
tion of  affairs,  that  a  memorial  was  numerously  signed  by 
members  of  the  Equity  Bar,  less  numerously  (but  sufficiently) 
by  their  brethren  of  the  Common  Law,  suggesting  the  summon- 
ing of  a  general  meeting  of  the  Bar  to  consider  the  whole  subject. 
This  memorial  was  presented,  in  November,  1863,  to  Sir  Roundell 
Palmer  (afterwards  Lord  Selborne),  who  was  then,  as  Attorney- 
General,  at  the  head  of  the  legal  profession ;  and  he,  after 
some  little  hesitation,  acquiesced  in  its  prayer.  The  meeting 
was  duly  held  on  2d  December,  1863 ;  and  a  Committee 
appointed  to  draw  up  a  definite  scheme.  The  scheme  was 
produced  at  a  meeting  held  on  1st  July,  1864,  and  then  dis- 

^  The  History  and  Origin  of  the  Law  Reports  (Clowes,  1884). 


194    A   SHORT   HISTORY   OF  ENGLISH  LAW 

cussed.  Objections  of  detail  were  taken ;  but  it  was  obvious 
that  the  sense  of  the  majority  was  strongly  in  favour  of  a  reform 
on  the  lines  broadly  indicated  by  the  report  of  the  Committee. 
On  only  two  points  does  there  appear  to  have  been  any  serious 
division  of  opinion  among  the  supporters  of  the  proposal.  One 
of  these  was  whether  the  new  reports  were  to  be  official  in  the 
strict  sense,  or  at  least  in  the  sense  that  no  others  could  be 
quoted  in  Court.  The  affirmative  of  this  proposition,  though 
supported  by  eminent  names,  was  ultimately  rejected  without 
a  division  at  the  adjourned  meeting,  held  on  28th  July,  1864,  at 
which  the  reform  proposals  were  finally  carried.^  A  similar  fate 
befell  a  proposal  to  maintain  the  old  individual  responsibility 
of  the  reporters  by  rejecting  the  proposals  of  the  Committee 
in  favour  of  editorial  supervision.-  These  points  of  principle 
having  been  cleared  up,  objections  resolved  themselves  into 
matters  of  financial  detail ;  and  the  latter  were  finally  overcome 
by  generous  offers  on  the  part  of  three  of  the  Inns  of  Court 
and  the  Council  of  the  Law  Society  (then  known  as  the  '  Incor- 
porated Law  Society  ' )  to  guarantee  the  expenses  of  the  first 
year's  publication.  Vested  interests  were  conciliated,  where 
possible,  by  the  offer  of  posts  on  the  reporting  staff  of  the  newly 
created  Council  of  Law  Reporting,  and  by  liberal  offers  of 
remuneration   to   publishers   and   booksellers. 

The  new  series,  which,  as  every  lawyer  knows,  comprises 
reports  of  moderate  length  of  cases  decided  in  all  the  various 
branches  of  the  Supreme  Court,  as  well  as  in  the  House  of 
Lords,  the  Judicial  Committee  of  the  Privy  Council,  the  Court 
of  Criminal  Appeal,  and  the  old  Court  of  Crown  Cases  Reserved, 
commenced  its  career  in  November  1865,  and  has,  in  the  general 
opinion,  been  an  unqualified  success,  both  literary  and  financial. 
An  indication  of  its  achievements  in  the  latter  direction  may 
be  gathered  from  the  fact  that  whereas,  in  the  estimate  of  Mr. 
Daniel,  a  complete  set  of  the  reports  current  in  1863  could  not 
be  obtained  for  a  less  annual  expense  than  £45,  the  annual 
subscription  to  the  complete  series  of  Law  Reports  is  now  only 
£4,  which  includes,  not  merely  the  Reports  proper,  but  such 
useful  appendages  as  The  Weekly  Notes,  The  Quarterly  Current 
Index  of  Cases,  and  The  Consolidated  and  Decennial  Digests 
which  are  from  time  to  time  published  by  the  Council.     The 

'  Daniel,  op.  cit.,  p.  225.  *  jud.^  pp.  224-245. 


MODERN  AUTHORITIES  195 

Council  itself  consists  of  two  representatives  of  each  of  the  four 
Inns  of  Court,  the  General  Council  of  the  Bar,  and  the  Law 
Society,  and  of  three  ex-officio  members,  viz.  the  Attorney- 
General,  the  Solicitor-General,  and  the  President  of  the  Law 
Society  for  the  time  being.  It  is,  therefore,  thoroughly  repre- 
sentative of  both  branches  of  the  legal  profession ;  whilst  at  the 
same  time,  through  the  Law  OjBBcers,  just  sufficiently  in  touch 
with  the  State  to  enable  it  to  be  assured  of  adequate  considera- 
tion for  its  views,  should  occasion  arise  for  it  to  express  an 
opinion  on  official  matters.  Despite  their  success,  however, 
the  Law  Reports  are  still  faced  by  wholesome  competition. 
Not  only  do  the  Law  Journal  Reports  continue  to  appear  in 
volumes  which  for  trustworthiness  and  convenience  are  hardly, 
if  at  all,  inferior  to  the  Laio  Reports;  but,  as  we  have  seen, 
several  other  series,  not  professing  to  give  such  complete  reports 
as  the  two  series  named,  continue  to  attract  sufficient  public 
support. 

It  is,  perhaps,  not  strictly  true  to  say,  that  the  sources  of 
authority  previously  described  in  this  chapter  are  the 
Sources  of      only  possible  authorities  for  the  guidance  of  English 
*^  Courts   at  the   present   day.     For  the   ecclesiastical 

courts,  though,  as  we  have  seen,^  shorn  of  much  of  their  dignity 
and  profit  by  the  Reformation  and  the  Civil  War,  were  not 
finally  deprived  even  of  their  temporal  jurisdiction  in  matters 
matrimonial  and  testamentary  until  1857 ;  while  they  exercise, 
of  course,  some  jurisdiction  in  purely  ecclesiastical  matters  to 
the  present  day.  Again,  the  Court  of  Admiralty  was  not 
merged  into  the  Supreme  Court  until  1875 ;  and,  when  it  was 
so  merged,  it  took  over  with  it,  like  the  ecclesiastical  courts  of 
Probate  and  Divorce,  its  existing  law,  subject,  of  course,  to 
statutory  and  judicial  modifications.  In  theory,  therefore,  both 
the  Canon  and  the  Roman  Civil  Law  may  be  quoted  as  author- 
ities in  the  English  Courts ;  when  these  are  exercising  what 
was  formerly  ecclesiastical  or  Admiralty  jurisdiction.  But 
the  legal  positions  of  the  two  are  not  precisely  the  same.     So 

_  ,  far  as  Roman  Law  is  concerned,  it  stands  where 
Roman  Law     .       ,    ,  i     •        i    i       •        p  •      • 

it  did,  as  the  admitted  basis  of  testamentary  juris- 
diction, and  a  considerable  authority  in  Admiralty  law,  subject 
only  (though  this  is  a  considerable  admission)  to  any  statutory 

'  Ante,  pp.  74,  75. 


196    A   SHORT  HISTORY  OF  ENGLISH  LAW 

alterations,   and  to  any  decisions  of  the   King's  Courts  from 
„        J         time  to  time  issued  or  delivered.     But  the   Canon 

Canon  Law 

Law  was  subjected  to  somewhat  remarkable  treat- 
ment at  the  time  of  the  Reformation.  As  it  then  stood,  it 
received  express  Parliamentary  sanction,  so  far  as  matters 
properly  within  its  scope  were  concerned,  and  so  far  as  it  was 
not  inconsistent  with  the  'Laws,  Statutes,  and  Customs  of  this 
Realm,  (n)or  to  the  Damage  or  Hurt  of  the  King's  Prerogative 
Royal,'  by  the  so-called  Act  for  the  Submission  of  the  Clergy ;  ^ 
and,  therefore,  the  Canon  Law  as  it  existed  in  1533,  is  binding, 
within  its  proper  sphere,  and  subject  to  the  exceptions  just 
mentioned,  both  on  clergy  and  laity.  On  the  other  hand,  no 
additions  subsequently  made  by  Papal  or  other  Roman  authority 
are  of  any  validity  in  English  courts,  ecclesiastical  or  civil ; 
while  additions  made  by  the  English  Convocations  under  Royal 
license,  though  they  bind  the  clergy  of  their  respective  provinces, 
do  not  bind  the  laity,  because  they  have  not  received  Parlia- 
mentary sanction.^ 

It  is  sometimes  said  that,  even  so  late  as  the  period  now 
under  discussion,  the  text-books  of  certain  very  eminent  writers 
Text-Book  have  been  treated  as  authorities  by  English  Courts, 
and  should  therefore  be  regarded  as  sources  of  modern 
English  Law.  But  this  is  true  only  in  a  modified  sense.  Doubt- 
less such  works  as  Blackstone's  Commentaries,  Dalton's  Country 
Justice,  and  Hawkins'  Pleas  of  the  Crown,  may  be  fairly  treated 
by  the  historian  as  statements,  jjrimd  facie  correct,  of  the  law 
at  the  time  when  they  were  written.  It  may  even  be  that, 
having  regard  to  the  great  reputation  of  such  writers,  English 
judges  will  allow  advocates  to  quote  from  them,  and  will  e\en 
themselves,  in  delivering  judgments,  allude  with  respect  and 
approval  to  these  works.  But  it  cannot  be  seriously  contended, 
that  these  works  are  authorities  in  the  sense  in  which  Bracton, 
Littleton,  and  even  Coke,  are  authorities  for  the  law  of  their 
respective  periods.  The  difference  between  the  weightiest 
passage  of  a  modern  text-book  writer  and  the  most  ordinary 
judgment   of   a   Court   of   First   Instance,   or   an   unimportant 

•  25  Hen.  VIII  (1533)  c.  19,  s.  7.  This  arrangement  was  intended  to  last  only 
until  a  contemplated  revision  had  taken  place  (ibid.,  s.  2  and  see  35  Hen.  VIII  (1543) 
c.  16).     But  the  revision  has  never  been  effected. 

'  See  the  position  learnedly  discussed  by  Lord  Ilardwicke,  C.  J.,  in  the  case  of 
Middleton  v.  Crofts  (1730)  2  Atk.  650. 


MODERN  AUTHORITIES  197 

section  of  an  Act  of  Parliament,  is  quite  clear.  The  advocate 
may  show  that  the  passage  in  question  is  inconsistent  with 
statute  or  judicial  decision ;  and,  if  he  succeeds,  its  so-called 
'authority'  is  at  once  gone.  He  may  attempt  to  show  the 
unwisdom,  absurdity,  or  inconsistency,  of  the  judicial  decision 
or  the  section  of  the  Act  of  Parliament ;  but,  until  these  have 
been  overruled  by  a  later  statute,  or  (in  the  case  of  the  judicial 
decision)  by  a  superior  tribunal,  they  remain  binding  in  'pari 
materia,  and,  even  if  the  advocate  is  not  pulled  up  for  irrele- 
vance, his  argument  will  be  of  no  avail.  Even  Blackstone, 
one  of  the  greatest  of  text-book  writers,  admits  freely  the  truth 
of  this  view.^  Text-book  writers,  whatever  they  once  were, 
are  now  guides  only,  and  not  authorities,  for  English  Law. 

The  only  exception  from  this  last  rule  is  more  apparent  than 
real.  It  consists  of  the  various  volumes  of  precedents  which. 
Practice  without  any  formal  official  sanction,  are  compiled 
Books  \yy  private  authors,  and  accepted  by  the  profession  as 

guides  in  practice.  These  fall,  generally  speaking,  into  two 
classes.  The  first,  formerly  known  as  Entries,  or  Books  of 
Entries,^  but  latterly  as  Precedents  of  Pleading,^  contain  speci- 
mens or  forms  of  the  various  documents  used  in  the  conduct 
of  litigation.  In  a  very  real  sense,  they  are  'authorities' 
for  the  law  of  the  period  under  discussion  ;  but  that  is  because, 
with  barely  an  exception,  all  the  precedents  given  are  copied 
from  documents  which  have  actually  been  used  in  legal  pro- 
ceedings, and  have  thus  passed  through  the  fire  of  judicial 
criticism.  In  other  words,  such  works  are  really  judicial  deci- 
sions in  a  somewhat  unusual  form.  The  second  class  of  Prece- 
dent Books  are  those  concerned  with  non-litigious  business, 
commonly  called  'conveyancing.'  By  their  very  nature,  they 
cannot  claim  the  direct  authority  which  belongs  to  forms  which 
have  been  treated  by  the  Courts  as  sufficient  for  their  purposes. 
But  the  known  unwillingness  of  the  Courts  to  disturb  the  public 
confidence  in  forms  which  have  been  made  the  vehicles  for 
transferring  interests  of,  perhaps,  great  value,  or  to  unsettle 
titles  based  upon  that  confidence,  tends  to  give  these  forms, 

1  Comm.  I,  72-73. 

2  Among  these  may  be  quoted,  more  or  less  in  chronological  order,  the  works  of 
Aston  (1661),  Brown  (1670),  Winch  (1680),  Robinson  and  Vidian  (16S4),  Hansard 
(1685),  Levinz  (1702),  Clift  (1703),  Lilly  (1723),  Mallory  (1734). 

'  Examples  are  the  works  of  Chitty,  Mitford,  Daniell,  and  BuUen  and  Leake.  , 


198    A   SHORT   HISTORY  OF   ENGLISH  LAW 

when  they  have  been  extensively  used,  something  like  a  negative 
judicial  authority.  Obviously,  however,  a  tribunal  cannot 
refuse  to  condemn  a  conveyancing  precedent  which  has  never 
really  received  judicial  or  parliamentary  approval ;  if  it  con- 
siders it  to  be  in  fact  insufficient,  or  based  on  a  misconception 
of  the  law.  Such  precedents  are  not,  therefore,  'authorities' 
in  the  strict  sense. 

Though  strictly  irrelevant  to  the  main  subject  of  the  present 
chapter,  it  may  be  convenient  to  say  here  a  few  words  about 
Legal  t^6    organization    of    the    legal    profession.     As    we 

Profession  have  seen,  the  earliest  lawsuit  was  a  fight ;  and,  in 
primitive  times,  deputies  or  agents  are  not  at  first  allowed  in  a 
fight,  for  obvious  reasons.  Even  in  Trial  by  Battle,  however, 
the  'champion,'  or  professional  pugilist,  appears  in  English 
legal  history  at  an  early  date,^  at  any  rate  in  civil  causes ;  and 
he  may  be  said  to  combine  in  himself  the  functions  of  counsel, 
attorney,  and  witness,  possibly  even  of  the  jury,  of  later  times. 
At  any  rate,  he  may  fairly  be  claimed  as  one  of  the  direct  ances- 
tors of  the  legal  profession.  No  sooner,  however,  is  the  system 
of  the  common  law,  with  its  regular  courts  and  pro- 
cedure, fairly  under  way,  than  we  note  a  specializa- 
tion of  functions  which  has  continued  to  the  present  day.  The 
champion  gradually  disappeared,  with  the  disappearance  of 
Trial  by  Battle  ;^  and  his  place  was  filled  by  the  serjeant  at  law 
(serviens  ad  legem)  and  apprentice,  and  by  the  responsalis  or 
attorney.  All  these  were  under  official  license ;  indeed,  in 
one  well-known  instance,  the  law  of  supply  and  demand  having 
failed,  the  royal  justices  were  bidden  (in  1292)  to  scour  the 
the  country  for  persons  suitable  for  enrolment  as  attorneys  and 
apprentices.^  The  Serjeants  were  a  close  Order  by  the  end  of 
the  thirteenth  century,  and  received  their  patents  direct  from 
the  Crown  —  in  later  days  with  much  ceremony.  They  had 
their  own  Inns  or  colleges.'*  Till  1834,  they  had  exclusive  audi- 
ence in  the  chief  civil  court,  the  Court  of  Common  Bench ;   and 

'  See,  for  examples,  the  cases  transcribed  into  Bradon's  Note  Book,  Vol.  II, 
cases  116  (1220),  104  (1222),  243  (1227),  328  (1229),  &c. 

2  Ante,  pp.  42,  43. 

'  Rot.  Par.  I,  84.  (The  early  Parliament  Rolls  are  full  of  the  privileges  and  sins 
of  attorneys.) 

*  The  names  at  least  of  two  survive ;  one  behind  Chancery  Lane,  the  other 
behind  Fleet  Street,  in  Loudon. 


MODERN  AUTHORITIES  199 

though,  In  that  year,  their  monopoly  was  formally  abolished 
by  royal  warrant  directed  to  the  Chancellor,^  yet,  in  1840, 
this  warrant  was  declared  by  the  Chief  Justice  of  the  Court 
to  be  invalid,  and  the  Order  was  only  finally  shorn  of  its  forensic 
monopoly  by  the  slow  process  of  extinction.  Its  still  greater 
judicial  monopoly  lasted,  in  theory,  till  1875  ;^  though  in  recent 
years  it  had  become  a  mere  formality,  the  judge  designate 
being  made  a  Serjeant  as  a  preliminary  to  being  sworn  into  his 
judicial  office.  But  for  centuries  it  was  the  firmly  established 
tradition,  that  all  the  Justices  of  both  Benches  and  all  Com- 
missioners of  Assise  ^  should  be  chosen  from  among  the  Serjeants  ; 
the  Serjeants  sat  within  the  'bar'  or  boundary  of  the  Court, 
and  were  addressed  by  the  judges  as  '  brothers.'  In  the  eigh- 
teenth century,  their  place  in  the  legal  world  began  to  be  taken 
by  the  King's  Counsel  Extraordinary,  or,  simply,  'King's 
Counsel,'  i.e.  the  officially  retained  representatives  of  the  Crown 
other  than  the  Law  Officers.^ 

These  new  'patent  counsel'  were,  however,  though  entitled 
to  precedence  over  their  undistinguished  brethren  of  the  Outer 
King's  Bar,^    and    to    seats    within    that    magic    boundary, 

Counsel  ^^^^^  |j],g  ^^le  Serjeants,  of  a  different  Order  from  them. 
They  mingled  freely  in  the  society  of  the  'apprentices'  or,  as 
they  were  later  called,  'students';  especiall}^  in  those  great 
Inns  of  colleges  of  legal  learning,  the  Inns  of  Court,  which. 

Court  founded  in  antiquity,  reached  their  zenith  at  the  end 

of  the  sixteenth  century.  These  represented,  as  has  been  said,^ 
the  revolt  against  Romanism  and  the  triumph  of  the  common  law 
in  the  thirteenth  century,  and  the  consequent  severance  from 

1  A  full  copy  is  given  in  PuUing's  Order  of  the  Coif,  p'.  100. 

'  Judicature  Act,  1873,  s.  8. 

^  The  author  cannot  trace  Mr.  Pulling's  reference  {op.  cit.,  p.  4,  n.)  to  the  statute 
'4  Edw.  Ill,  c.  16,'  which  he  quotes  for  a  statutory  monopoly. 

*  Of  course  there  were  earlier  examples,  of  whom  Bacon  at  the  beginning,  and 
Francis  North  at  the  end,  of  the  seventeenth  century,  are  well  known.  The  King's 
Counsel  have  disabilities,  as  well  as  privileges.  Thus  they  cannot  appear  for  a 
prisoner  against  the  Crown  without  royal  permission,  which,  at  one  time,  was  only 
obtainable  on  payment  of  a  fee.  It  must  be  remembered,  however,  that,  when 
King's  Counsel  were  first  created,  prisoners  had  no  right  to  be  defended  by  counsel, 
except  on  points  of  law. 

^  This,  and  its  analogue,  the  Inner  Bar,  are  orthodox  but  curious  expressions. 
There  is  but  one  bar  in  each  Court ;  and  some  advocates  are  entitled  to  plead 
within  it,  whilst  the  rest  must  plead  from  without.  But  such  inaccuracies  are 
common  in  every  professional  language ;  and  the  attempts  to  justify  them  are  of  tea 
more  amusing  than  the  inaccuracies  themselves. 

"  Ante,  p.  20. 


200    A   SHORT   HISTORY  OF  ENGLISH  LAW 

the  classical  learning  of  the  universities.  At  an  unknown  date, 
they  seem  to  have  acquired  a  monopoly  of  that  privilege  of  'call- 
ing to  the  Bar,'  i.e.  of  licensing  'apprentices'  to  pursue  their 
calling,  which,  as  we  have  seen,  was  entrusted  by  Edward  I  to 
his  Justices ;  but  the  right  of  appeal  from  their  decisions  to 
the  assembled  judges,  which  still  survives,  and  is  occasionally 
exercised,  marks  the  privilege  of  the  Inns  of  Court  as  a  delega- 
tion, not  as  an  original  authority.  Each  Inn  of  Court  has  long 
had  its  own  internal  organization  of  Benchers  (or  ruling  body), 
in  whose  '  Parliaments '  the  affairs  of  the  Inn  are  managed,  ordi- 
nary barristers  (for  inside  the  Inns  King's  Counsel  have,  as  such, 
no  official  rank)  and  students,^  i.e.  those  who  are  Cjualifying  for 
call  to  the  Bar,  but  are  not  yet  entitled  to  audience  in  the  Courts. 
The  glorious  buildings  and  gardens  of  the  Inns  of  Court,  their 
libraries,  pictures,  and  plate,  testify  to  their  ancient  wealth 
and  importance ;  and  Coke's  enthusiastic  account  of  them  is 
well  known."  In  the  eighteenth  century,  they  seemed  to  have 
fallen  into  sloth  and  decay.  Their  buildings  became  ruinous, 
their  readerships  and  exercises  mere  formalities,^  their  libraries 
dispersed  or  deserted,  their  accounts  often  confused,  or  worse. 
But  at  length  the  spirit  of  reform  reached  them.  Though 
changes  in  social  conditions,  especially  the  outward  march  of 
the  suburbs,  have  almost  deprived  them  of  their  residential 
character,  they  have  re-constituted  themselves  as  the  professional 
centres  of  forensic  life,  and,  though  hardly  yet  to  an  extent 
commensurate  with  their  resources  and  opportunities,  as  centres 
of  legal  study.  The  establishment,  in  the  year  1852,  of  the 
Council  of  Legal  Education,  consisting  of  representatives  of 
the  Benches  of  the  Four  Inns,  marked  a  great  step  in  advance ; 
and  the  formation,  in  the  year  1894,  of  the  General  Council  of 
the  Bar,  charged  with  the  guardianship  of  professional  etiquette, 
though  in  itself  somewhat  of  a  reflection  on  the  activity  of  the 
Benches,  has  provided  a  wholesome  criticism  and  incentive 
of  the  bodies  with  whom  the  executive  authority  still  rests.  In 
addition  to  its  purely  critical  functions,  the  General  Council  of 
the   Bar  appoints  representatives  on  various  important  bodies, 

'  The  reader  must  remember  that,  in  the  sixteenth  century,  the  term  'student' 
or  'apprentice' still  included  members  of  the  Outer  Bar,  who  were  entitled,  or  at 
l<a!st  permitted,    to    speak    in    Court.      The   change   to   modern    usage   seems   to 
have  taken  place  about  the  time  of  the  Civil  War. 
.     *  3  Rep.  pref.  pp.  xxxv-xxxviii.  ^  Blackstone,  Comm.  Vol.  I,  p.  25. 


MODERN   AUTHORITIES  201 

e.g.  the  Rule-making  committees  under  the  Judicature  Acts,  the 
Land  Transfer  Acts,  and  the  Criminal  Appeal  Act,  and  to  the 
Council  of  Law  Reporting. 

The  earliest  attorneys  were,  in  all  probability,  simple  non- 

professional  agents,  whose  duty  it  was  to  represent  their 
and  employers  in  legal  proceedings.     Such  persons  would 

be  very  necessary  in  days  when  litigation  was  rapidly 
increasing ;  but  when  facilities  for  travel  were  in  an  elementary 
stage. ^  We  must,  however,  again  remember  how  primitive 
tribunals  cling  to  the  view  that  no  proceedings  can  be  taken  in 
the  absence  of  the  parties;  this  will  account  for  the  reluctance 
shown  by  early  law  to  recognize  the  existence  of  agency  or 
attorneyship.  It  is  not  till  1235  that  'suitors'  (who  would 
probably  include  both  plaintiffs  and  persons  bound  to  attend 
the  Court  as  part  of  the  homage)  were  allowed  generally  to  be 
represented  by  attorneys  ;  and  then  only  in  the  local  courts.^  In 
1278,  by  the  Statute  of  Gloucester,^  the  privilege  was  extended 
to  defendants,  in  cases  which  could  not  lead  to  battle.  After  the 
great  diminution  in  the  prosecutions  by  way  of  appeal  had  taken 
place,  as  previously  explained,^  even  appeals  of  homicide  could  be 
presented  and  defended  by  attorney ;  if,  for  any  reason,  trial 
by  battle  could  not  follow.^ 

The  professional  character  of  attorneys  begins  to  make  itself 
felt  in  the  statute  of  1402,^  which  speaks  with  regret  of  the  number 
of  attorneys  'ignorant  and  not  learned  in  the  law,'  and  requires 
all  candidates  for  admission  to  the  roll  {'en  rolle ')^  to  be  examined 
by  the  Justices ;  and  a  statute  of  James  I  ^  repeats  this  require- 
ment in  other  terms.  JNIeanwhile,  the  new  jurisdiction  of  the 
Court  of  Chancery  had  produced  another  similar  body  of  prac- 
titioners. At  first,  apparently,  the  ]\Iasters  in  Chancery  were 
supposed  to  look  after  the  Equity  suitors'  interests ;  but  the 
natural  desire  of  litigants  to  have  agents  specially  charged  with 
furthering  or  'soliciting'  their  causes,  led  to  the  recognition 
of  a  special  body  of  semi-attached  officials,  known  as  'solicitors,* 
who  are  treated  by  the  statute  of  1605  as  on  the  same  footing  with 

*  This  is  specially  mentioned  as  a  ground  for  appointing  an  attorney  in  the  so- 
called  Ordinance  of  Liberties,  printed  as  27  Edw.  I  (1299)  c.  5. 

2  Statute  of  Merton  (20  Hen.  Ill)  c.  10.  =*  6  Edw.  I,  c.  8. 

*  Ante,  pp.  155,  150.       ^3  Hen.  VII  (1486)  c.  1,  s.  91.         M  Hen.  IV,  c.  18. 

'  This  must  mean  'the  rolls'  (i.e.  of  the  various  Courts).     It  was  not  until  the 
passing  of  the  Solicitors  Act,  1843,  that  a  single  Roll  of  Solicitors  came  into  existence. 
»  3  Jac.  I  (1605)  c.  7. 


202    A   SHORT  HISTORY   OF  ENGLISH  LAW 

attorney's.  A  third  class  of  non-forensic  practitioners  who  made 
their  appearance  before  the  end  of  the  sixteenth  century  were  the 
'scriveners,'^  who  concerned  themselves  only  with  chamber  or 
non-litigious  business,  chiefly  borrowing  and  lending  of  money. 
Milton's  father  was  a  scrivener ;  and  the  Scriveners'  Company  or 
Gild,  which  received  a  charter  from  James  I,  survives,  in  a  some- 
what attenuated  form,  to  the  present  day." 

So  far  as  the  social  and  educational  side  of  the  non-forensic 
branch  of  the  profession  was  concerned,  attorneys  and  solicitors 
Inns  of  appear,  until  the  close  of  the  sixteenth  century  at 

Chancery  Jeast,  to  have  been,  in  many  cases,  members  of  the  Inns 
of  Court,  above  alluded  to.  But  the  overflow  of  these  founda- 
tions, in  the  days  of  their  strength,  seems  to  have  resulted  in  the 
formation  of  a  number  of  minor  or  preparatory  Inns,  known  as 
Inns  of  Chancery,  in  the  neighbourhood  of  the  greater  founda- 
tions. Some  of  these,  such  as  Thavie's  Inn  and  Barnard's 
Inn,  suggest,  by  their  titles,  that  they  were  originally  founded 
by  private  proprietors;  but  there  is  a  well-established  tradition 
to  the  effect  that  each  was  affiliated  to  one  or  other  of  the  Inns 
of  Court ;  ^  and  the  tradition  has  been  acted  upon  at  least  in 
one  modern  case.'*  Apparently,  it  was  to  these  Inns  of  Chancery 
that  attorneys  and  solicitors  chiefly  resorted ;  and  though,  again 
and  again,  in  the  latter  part  of  the  seventeenth  century,  it 
was  laid  down  by  judicial  Order,^  that  all  attorneys  of  the 
Common  Pleas  should  join  some  Inn  of  Court  or  of  Chancery, 
it  is  evident,  from  the  wording  of  the  later  Orders,^  that  some 
opposition  to  the  injunction  was  being  experienced  from  the 

J  These  had  probably  originated  in  the  humble  guise  of  writers  of  court  hand  in 
very  early  times  (Freshfield,  Records  of  the  Society  of  Gentlemen  Practisers,  Intro- 
duction, p.  xii). 

^  The  ancient  monopoly  of  the  Scriveners'  Company,  at  any  rate  in  the  City  of 
London,  was  finally  defeated,  after  lengthy  ligitation,  by  the  decision  in  Harrison  v. 
Smith,  in  the  year  1760  (Freshfield,  Records,  Introd.,  p.  Ixvi).  Since  that  date, 
conveyancing  has  been  recognized  as  a  proper  part  of  the  solicitor's  professional 
work.  Of  course  members  of  the  Bar  are  entitled  also  to  draw  and  settle  convey- 
ancing documents ;  and,  at  one  time,  there  was  a  middle  rank  of  '  conveyancer 
under  the  bar,'  now  practically  extinct. 

'  See  the  preface  to  Coke's  3d  volume  of   Reports,  p.  xxxvi,  before  alluded  to. 

■*  In  the  division  of  the  large  sum  of  money  obtained  by  the  sale  of  the  site  and 
buildings  of  Now  Inn,  in  the  year  1901,  a  substantial  portion  was  allotted  to  the 
Middle  Temple  in  respect  of  its  overlordship. 

*  Orders  of  Michaelmas  1654,  Trinity  1677,  Michaelmas  1684,  and  Michaelmas 
1705,  in  Cooke's  Rules,  Orders,  arid  Notices. 

*  See  Orders  of  1684  and  1705,  uhi  sup.  ('if  those  Honorable  Societies  shall  please 
to  admit  them'). 


MODERN   AUTHORITIES  203 

larger  foundations.  Ultimately,  at  some  uncertain  date,  prob- 
ably at  the  beginning  of  the  eighteenth  century,  the  Inns  of 
Court  succeeded  in  excluding  from  their  membership  all  attorneys 
and  solicitors,  who  thereupon  seem  to  have  retired  to  the  Inns 
of  Chancery ;  thus  establishing,  in  addition  to  the  division  of 
functions  between  the  two  branches  of  the  profession,  which, 
as  we  have  seen,  existed  in  the  thirteenth  century,  a  division 
of  education  and  discipline,  which  was  no  part  of  the  original 
system.^  It  is  worthy  of  notice  that,  according  to  Roger  North,^ 
personal  intercourse  with  the  lay  client,  which  had  formerly 
been  shared  between  both  branches  of  the  profession,  became 
confined  to  the  non-forensic  branch  in  the  last  half  of  the  seven- 
teenth century,  i.e.  at  the  very  time  when  the  completion  of 
the  severance  between  the  two  branches  was  becoming  imminent. 
The  natural  consequence  of  the  change  was,  that  the  business 
and  reputation  of  individual  barristers  came  to  depend  largely 
on  the  favour  of  attorneys  and  solicitors. 

The  decay  which  characterized  the  Inns  of  Court  in  the 
eighteenth  century  was  shared  to  the  full  by  the  Inns  of  Chancery. 
_  ,  Already  in  the  Order  of  1705  ^  we  find  the  judges  of  the 
Inns  of  Common  Pleas  lamenting  the  intermission  of '  commons,' 

ancery  ^^  social  gatherings,  in  the  Chancery  Inns,  with  the 
consequent  decay  and  detriment  of  those  societies,  and  attempt- 
ing to  revive  them.  It  was,  however,  too  late  to  save  the  Inns 
of  Chancery,  which  gradually  sank  into  the  position  of  mere 
dining  and  perquisite  clubs  for  the  benefit  of  a  few  '  ancients ' 
or  benchers,  recruited  on  a  closely  co-optative  principle.  The 
lowest  stage  of  degradation  was  reached  when,  in  the  nineteenth 
century,  the  ancient  sites  and  buildings  of  the  Inns  of  Chancery 
were  taken  for  public  purposes ;  and  the  large  sums  paid  by 
way  of  compensation  were  pocketed  by  the  members  of  their 
governing  bodies.  This  scandalous  procedure,  after  prevailing  in 
several  cases,  was  at  length  put  a  stop  to  by  the  decision  of  Mr. 
Justice  Cozens-Hardy  (now  Master  of  the  Rolls)  in  the  case  of 
Clifford's  Inn  ;  ^  and  the  considerable  amount  realized  by  the  sale 
of  the  property  of  that  Inn  and  New  Inn  was  ear-marked  for  the 

>  See  further  on  this  point  L.Q.R.  XXVI,  pp.  137-145,  by  H.  H.  L.  Bellot. 

^  Lives  of  the  Norths  (Bohn)  III,  par.  175. 

'  Cooke,  Rules,  Orders,  and  Notices.  (The  only  drawback  of  this  deeply  interest- 
ing and  well-printed  volume  is,  that  it  is  not  paged.) 

*  Smith  V.  Kerr  [1900]  2  Ch.  511  ;    confirmed  [1902]  1  Ch.  774. 


204    A   SHORT  HISTORY  OF  ENGLISH   LAW 

purposes  of  legal  education.  A  bold  and  comprehensive  scheme 
for  the  utilization  of  this  and  other  funds,  a  scheme  in  some 
degree  worthy  of  the  capital  of  the  greatest  Empire  in  the  world, 
was  presented  by  the  Attorney-General  of  the  day  (Sir  Robert 
Finlay),  in  his  capacity  of  official  guardian  of  charitable  funds, 
but  was  blocked,  temporarily  at  least,  by  the  refusal  of  the 
Benchers  of  the  Inner  Temple  to  concur. 

Meanwhile,  the  status  of  attorneys  and  solicitors,  as  officers 
of  the  Courts,  had  been  regulated  by  more  than  one  statute 
Voluntary  of  the  eighteenth  century,  of  which  perhaps  the 
most  important  is  that  of  1729,^  which  introduced 
the  requirement  of  five  years'  apprenticeship,  under  written 
articles,  to  a  practising  solicitor,  as  a  condition  precedent  of 
being  admitted  to  the  rolls,  and  virtually  abolished  the  distinc- 
tion between  attorneys  and  solicitors,  by  allowing  any  duly 
qualified  attorney  to  be  sworn  also  as  a  solicitor.^  But  by  far 
the  most  important  step  in  the  interests  of  the  profession  was 
taken,  in  the  year  1739,  b\^  the  formation,  on  a  purely  voluntary 
basis,  of  the  Society  of  Gentlemen  Practisers  in  the  Courts  of 
Law  and  Equity.^  Though  the  records  of  this  Society  are  not 
complete,  there  is  every  reason  to  believe  that  it  continued 
to  flourish,  as  a  private  society,  until  the  year  1831,  when,  with 
other  societies  having  a  briefer  history,  it  was  merged  in  the 
chartered  body  known  from  1831  to  1903  as  '  The  Incorporated 
Law  Society,'  ^  and  from  1903  onwards  as  'The  Law  Society.' 

One  of  the  most  striking  features  of  this  body  is  its  dual 
character  —  public  and  private.  Membership  of  the  Society 
The  Law  (uow  amounting  to  about  9000)  is  purely  volun- 
Society  -^^ry ;    and  the  voluntary  subscriptions  of  members 

go  towards  the  social  side  of  the  Society's  activity,  its  public 
rooms,  library,  and  entertainments,  and  the  expenses  incurred 
in  the  protection  of  the  professional  interests  of  solicitors.  But, 
in  its  public  capacity,  the  Society  acts  as  the  registrar,  educator, 

'2  Geo.  II,  c.  23,  ss.  5  (attorneys),  7  (solicitors). 

*  Ihid.,  s.  20.     Reciprocity  was  established  in  1750  (23  Geo.  II,  c.  26,  s.  15). 

^  See  the  Records  of  this  Society,  published  by  The  (Incorporated)  Law  Society 
in  1897,  with  Introduction  by  Dr.  Edwin  Freshfield. 

*  This  was  not  its  official  title,  which  was  '  The  Society  of  Attorneys,  Solicitors, 
Proctors,  and  others,  not  being  Barristers,  practising  in  the  Courts  of  Law  and 
Equity  of  the  United  Kingdom.'  (See  the  charters  at  length  in  tlie  Handbook  of 
The  Law  Society,  pp.  32-41.)  Proctors  were  ecclesiastical  agents.  They  were 
abolished  as  a  distinct  body  in  1857,  when  the  Courts  of  Probate  and  Divorce  were 
established. 


MODERN  AUTHORITIES  205 

examiner,  and  discipliner,  of  present  and  future  solicitors ; 
either  as  delegate  of  the  State,  or  as  an  autliority  recognized  by 
the  State.  In  the  year  1843,  though  the  admission  of  sohcitors 
to  the  Roll  is  still  the  exclusive  prerogative  of  the  Master  of  the 
Rolls,  the  custody  of  the  official  Roll,  containing  the  names  of 
solicitors  entitled  to  practise,  was  entrusted  to  the  Law  Society.^ 
In  the  year  1877,  the  sole  control  of  the  examinations  qualifying 
for  admission  to  practise  was  entrusted  to  the  Society,^  which  was 
already  charged  with  the  education  of  articled  clerks  in  the  theory 
of  their  intended  profession.^  From  the  year  1833  onwards,  this 
function  had  been  more  or  less  completely  performed  by  the 
holding  of  lectures  and  classes;  but,  in  the  year  1903,  a  new  and 
comprehensive  system  was  instituted,  which  not  only  provides 
for  articled  clerks'  complete  legal  education  in  London,  but 
substantially  assists  similar  efforts  made  by  provincial  Law 
Societies  in  large  towns,  in  many  cases  in  conjunction  with 
the  newly  founded  universities  and  colleges,  which  sprang  up  in 
the  latter  half  of  the  nineteenth  century.  The  administration 
of  this  scheme,  subject  to  the  general  control  of  the  Council  of 
the  Society,  is  vested  in  a  mixed  Committee,  annually  appointed 
by  the  Council,  and  consisting  of  a  majority  of  representatives 
of  that  body,  of  representatives  of  provincial  Law  Societies,  and 
of  two  solicitors  nominated  by  the  members  of  students'  societies. 
The  examinations  are  conducted  by  an  ordinary  committee  of 
the  Council,  annually  appointed  by  that  body. 

Finally,  the  disciplinary  functions  of  the  Law  Society,  formerly 
of  a  purely  critical  character,  assumed  a  new  and  important 
phase  when,  in  the  year  1888,  the  preliminary  investigation  of 
charges  of  professional  misconduct  against  solicitors  was  en- 
trusted to  a  committee  of  the  Council  of  the  Society  (known 
as  the  '  Discipline  Committee '),  appointed  by  the  Master 
of  the  Rolls.'*  This  committee,  sitting  as  a  court  of  discipline, 
but  in  private,  hears  charges,  and  reports  to  the  Court  thereon ; 
whereupon  the  Court,  with  which  executive  action  still  ex- 
clusively remains,  makes  such  order  as  it  considers  to  be  just ; 
either  dismissing  the  complaint  as  unfounded,  or  suspending  the 
solicitor  inculpated  from  practice  for  a  longer  or  shorter  time, 

^  Solicitors  Act,  1843,  s.  21.  The  process  was  not  completed  till  1SS8  (Solicitors 
Act,  1888,  ss.  5-6). 

2  Solicitors  Act,  1877.  ^Ibid.,  1877,  s.  8.  *  Ibid.,  1888,  s.  13. 


206    A   SHORT  HISTORY  OF  ENGLISH  LAW 

or,  in  grave  cases,  striking  his  name  off  the  Roll.  The  statute 
expressly  reserves  ^  to  any  complainant  the  right  to  proceed 
by  direct  application  to  the  Court ;  and,  presumably,  the 
right  to  bring  a  civil  action  against  a  solicitor  for  negligence, 
and,  certainly,  the  power  of  the  Crown  to  prosecute  for  criminal 
offences,  are  not  affected  by  its  provisions.  But  the  advantage 
to  the  Court  of  being  relieved  of  long  and  wearisome  enquiries 
into  details,  and  the  obvious  gain  to  justice,  by  allowing  charges, 
which  may  be  reckless  or  unfounded,  to  be  investigated  without 
the  odium  necessarily  attendant  on  a  public  enquiry,  are  abund- 
ant justification  of  the  policy  of  the  Act. 

1  S.  13,  ad  fin. 


CHAPTER  XIV 
REFORM  BY  EQUITY 

IT  has  often  been  remarked,  that  the  history  of  Enghsh  legis- 
lation during  the  eighteenth  century,  at  least  so  far  as 
private  law  is  concerned,  is  almost  a  blank.  If  we  put 
aside  the  Act  for  the  Amendment  of  the  Law  passed  in  1705,^ 
the  Diplomatic  Privileges  Act  of  1708,  the  Land  Registry  Acts 
Legislative  of  1706  and  1708,  the  Landlord  and  Tenant  Acts  of 
stagnation  1709  and  1730,  the  Charitable  Uses  Act  of  1735, 
the  Distress  for  Rent  Act,  1737,  the  Inclosure  Act  of  1773,  and 
the  Life  Assurance  Act  of  1774  (none  of  which  measures  are 
really  of  first-class  importance),  we  shall  hardly  find  a  single  Act 
of  Parliament  of  those  momentous  years,  from  1700  to  1800, 
which  has  left  a  permanent  mark  on  the  body  of  English  civil  law. 
Apparently,  the  reaction  which  followed  upon  the  agitation  of 
the  Civil  War,  combined  with  the  feeling  of  uncertainty  pro- 
duced by  a  disputed  succession  to  the  Crown,  rendered  the  nation 
unwilling  to  allow  the  laborious  and  disturbing  machinery  of 
Parliamentary  reform  to  tamper  with  the  ancient  institutions  of 
the  country.  At  any  rate,  the  striking  fact  remains,  that  the 
century  which  witnessed  the  passing  of  the  Statute  of  Monopolies,^ 
the  Limitation  Act,^  the  Petition  of  Right, ^  the  Star  Chamber 
and  Habeas  Corpus  Acts,^  the  Act  for  the  Abolition  of  Feudal 
Tenures,^  the  Navigation  Acts,^  the  Act  for  abolishing  Arrest  on 
Mesne  Process,^  the  Statute  of  Frauds,^  the  Statutes  of  Distribu- 
tion," the  Bill  of  Rights,"  the  Statute  of  Fraudulent  Devises,^^  ^j^g 
Treason  Act,^^  the  Bond  Execution  Act,^^  and  the  Act  of  Settle- 

'  4  &  5  Anne,  c.  3  (or  16).    It  seems  a  little  strange,  that  this  useful  statute,  much 
of  which  is  still  live  law,  should  not  have  an  official  short  title. 

*  21  Jac.  I  (1623)  c.  3.  3  Ibid.,  c.  16.  ^  3  Car.  I  (1627)  c.  1. 

5  16  Car.  I  (1640)  c.  10,  and  31  Car.  II  (1679)  c.  2. 

6  12  Car.  II  (1660)  c.  24.  '  Ibid.,  c.  18,  &c. 

8  13  Car.  II,  St.  II  (1661)  c.  2.  '29  Car.  II  (1677)  c.  3. 

i»22  &  23  Car.  II  (1670)  c.  10;    1  Jac.  II  (1685)  c.  17. 
"  1  W.  &  M.  St.  II  (1689)  c.  2.  12  3  W.  &  M.  (1691)  c.  14. 

"  7  &  8  W.  Ill  (1695)  c.  3. 

"  8  &  9  W.  Ill  (1696)  c.  11.     (This  statute  also  ought  to  have  an  official  short 
title.) 


^08    A   SHORT   HISTORY  OF   ENGLISH   LAW 

ment/  was  followed  by  the  century  whose  chief  legislative  out- 
put was  the  meagre  crop  of  statutes  mentioned  above.  And 
from  this  fact  it  might  be  hastily  concluded,  that  the  eighteenth 
century  was  a  stagnant  period  in  the  history  of  English  Law. 
In  fact  it  can  hardly  be  described  as  revolutionary ;  but  it  would 
be  a  great  mistake  to  suppose  that  it  witnessed  no  legal  reform. 
The  explanation  is,  that  the  chief  engine  of  law  reform  during 
that  century  was  the  judicial  action  of  the  Courts,  proceeding 
chiefly  under  the  guise  of  Equity,  and  chiefly,  though  by  no 
means  exclusively,  in  the  Court  of  Chancery. 

The  successive  watchwords  of  the  Chancellor's  equitable  juris- 
diction will  give  us  the  best  key  to  the  historical  explanation  of 
the  notion  of  'Equity,'  as  understood  by  English 
lawyers.  At  first  the  Chancellor's  equita})le  juris- 
diction was  confined  to  matters  of  'grace,'  i.e.  matters  requiring 
special  indulgence  or  provision.  It  was  thought  suitable  in  the 
fourteenth  century  (the  exact  dates  are  still  obscure)  to  entrust 
the  exercise  of  this  branch  of  the  prerogative  to  one  who,  as  the 
Custodian  of  the  Great  Seal,  w^as  already  a  great  administrative 
official,  charged  with  the  custody  of  the  Register  of  Writs,  and 
having  also  some  rather  undefined  Common  Law,  or  'Latin'  juris- 
diction ^  in  matters  of  sci.  fa.  and  other  strictly  legal  proceedings. 
It  was,  doubtless,  the  'grace '  foundation  of  Chancery  jurisdiction 
which  gave  rise  to  the  popular  idea  expressed  in  Selden's  Table 
Talk,^  that  '  Equity  is  a  roguish  thing,'  for  that  it  varies  as  the 
length  of  the  Chancellor's  foot.  Nor  can  it  be  denied,  that  this 
original  characteristic  long  served  the  Chancellor  in  good  stead ; 
when  he  desired  to  depart  somewhat  widely  from  tradition. 

Nevertheless,  long  before  Selden's  day,  '  conscience '  had  al- 
most  superseded    '  grace '    as   the   working   foundation   of    the 

,   Chancellor's    equitable    jurisdiction.     This    was    but 

Conscience'  ^  **  •  i       /-,  o      i 

a  natural  consequence  of  entrustmg  the  Great    Seal 

to  ecclesiastics,  whose  leanings  tovrards  casuistry,  and  peculiar 

means  of  probing  the  minds  of  their  penitents,  caused  them  to 

lean  heavily  on  the  inward  intent  of  the  parties,  rather  than  on 

those  external  forms  beloved  of  the  Common  Law.     The  contrast 

between  the  two  principles  is,  as  we  have  seen,'*  strongly  brought 

1  12  &  13  W.  Ill  (1700)  c.  2. 

^  So  called,  to  distinRuish  it  from  the  jurisdiction  by  'EnRlish  Bill'  in  Equity. 

^  Ed.  Reynolds,  xxxvii,  2.  ■•  Ante,  pp.  1:39,  140. 


REFORM  BY  EQUITY  209 

out  in  the  Dialogues  of  Doctor  and  Student,  in  the  middle  of  the 
sixteenth  century.  To  the  appHcation  of  the  doctrine  of  'con- 
science' the  Court  owed  its  vast  jurisdiction  in  Trusts  and 
Fraud. 

But  now,  before  the  period  we  are  approaching,  the  long  line 
of  ecclesiastical  chancellors  had  ended  with  Wolsey  and  Stephen 
Gardiner,^  and  had  been  replaced,  for  a  short  period,  by  a  line 
of  statesmen  of  the  type  of  More,  Nicolas,  and  Francis  Bacon, 
men  more  familiar  perhaps  with  the  Council  Board  than  the 
judgment  seat.  They  it  was,  doubtless,  who  had  given  to  Chan- 
cery that  forcible  character  in  personam,  which  was  so  powerful 
a  weapon  in  its  armory.  It  was  natural  that  the  direct  wielders 
of  the  royal  prerogative,  men  who  sat  in  the  Star  Chamber  and 
the  Privy  Council,  who  knew  the  secrets  of  State  and  the  neces- 
sity for  prompt  action,  should  despise  the  merely  declaratory 
character  of  a  good  deal  of  Common  Law  process.  To  them  we 
doubtless  owe  those  four  great  pillars  of  Chancery  jurisdiction, 
the  injunction,  the  decree,  the  sequestration,"  and  the  commis- 
sion of  rebellion.  The  first  of  these  forbade  the  defendant,  on 
pain  of  imprisonment,  to  continue  his  existing  or  contemplated 
course  of  action ;  and  we  have  seen  how,^  under  a  thin  disguise, 
the  Chancellor,  by  means  of  this  process,  had,  in  the  year  1618, 
won  a  decisive  victory  over  the  Common  Law  courts,  and  prac- 
tically enabled  the  Chancery  to  control  their  proceedings.  The 
decree,  or  positive  order,  bidding  the  defendant  do  some  act,  was 
not  confined  to  the  mere  carrying  out,  or  '  specific  performance,' 
of  contracts ;  though  that  was  its  commonest  application.  As 
is  well  known,  it  was  used,  though  sparingly,  to  remedy  that 
serious  defect  in  Common  Law  procedure,  which  permitted  a  de- 
feated defendant  in  Detinue  or  Trover,  to  retain  the  subject 
matter  of  the  action,  on  paying  its  value.'*     It  was,  probably, 

'  Of  course  even  Gardiner  was  not  absolutely  the  last  ecclesiastical  chancellor. 
He  was  succeeded  by  Archbishop  Heath  of  York ;  and  Bishop  Williams  of  Lincoln 
was  Lord  Keeper  from  1621  to  1625.     But  these  two  were  of  little  note. 

-Roger  North,  in  his  amusing  but  inaccurate  work,  Lives  of  the  Norths  (Vol.  I, 
p.  295),  attributes  the  invention  of  the  sequestration  to  Lord  Keeper  Coventry 
(1625-1640).  But  it  is  certainly  much  older.  It  was,  for  example,  applied  for  in 
Awtry  V.  George  (1600)  Acta  Cancellariae,  757-759  ;  and,  though  the  Court  was  reluc- 
tant to  grant  the  application,  it  did  not  regard  it  as  unprecedented. 

'  Ante,  p.  166. 

*  See  this  point  discussed,  ante,  p.  59.  (The  leading  cases  on  the  equitable  juris- 
diction are  Pusey  v.  Pusey  (1684)  1  Vern.  273;  D.  of  Somerset  v.  Cookson  (1735) 
3  P.  Wms.  390.) 


210    A  SHORT  HISTORY  OF  ENGLISH  LA^^' 

also  the  origin  of  the  Chancery  jurisdiction  in  partition ;  for  the 
award  of  the  Court  could  not  convey  the  legal  estate,  it  merely 
directed  the  parties  to  make  mutual  conveyances.  The  seques- 
tration was  a  far  superior  process  of  Distress,  which  enabled  a 
plaintiff  whose  opponent  refused  to  appear  or  to  obey  a  decree, 
to  seize  the  latter's  property,  and  pay  himself  out  of  the  pro- 
ceeds ;  instead  of  proceeding  laboriously  to  outlawry,  or,  through 
the  sheriff,  by  Fi.  Fa.  or  Elegit}  The  commission  of  rebellion 
enabled  him  to  supersede  the  somewhat  dilatory  officers  of  tlie 
Marshalsea  and  other  civil  prisons,  by  the  prompter  methods 
of  the  Tower.^  With  these  weapons  in  his  hands,  the  Chancery 
suitor  was  in  a  position  far  superior  to  that  of  his  brother  at 
Common  Law ;  at  least  until  the  cumbrous  processes  of  Attach- 
ment and  Distress  had  been  superseded  by  the  fictions  which 
enabled  a  Capias  to  be  employed  to  arrest  the  defendant  in  al- 
most all  Common  Law  cases.^ 

But,  with  the  commencement  of  the  seventeenth  century, 
the  statesmen  Chancellors  begun  to  be  superseded  by  a  more 
,  specialist  class  —  men  like  Pickering,  Egerton  (after- 
wards Lord  Ellesmere)  and  Coventry,  who  were 
law.yers  first  and  last ;  and,  after  the  retirement  of  Lord  Claren- 
don in  1667,  the  change  became  practically  permanent.  It  is 
marked  by  frequent  variations  of  title,  which  seem  to  indicate 
that  the  Crown  was  hardly  yet  prepared  to  endow  the  new 
type  of  custodian  of  the  Great  Seal  with  all  the  powers  of  his 
medieval  predecessors.  The  title  of  'Lord  Keeper'  appears 
frequently  in  the  place  of  that  of  '  Lord  Chancellor ' ;  and  in 
1562  it  was  deemed  necessary  to  enact,^  that  the  Lord  Keeper 
had,  'and  of  right  ought  to  have,  the  same  and  like  Place, 
Authority,  Preheminence,  Jurisdiction  .  .  .  Commodities,  and 
Advantages'  as  a  Lord  Chancellor.  The  chief  difference 
between  a  Lord  Keeper  and  a  Lord  Chancellor  was,  in  fact, 
that  the  former  was  seldom,  or  at  least  not  necessarily,  made 
a  peer,  and  was,  therefore,  not  a  member  of,  though  he  pre- 

1  There  seems  to  have  been  some  little  doubt  whether  a  sequestration  could  be 
issued  of  any  property  other  than  that  in  dispute  in  the  cause  (see  Practice  of  the 
Hiah  Court  of  Chancery,  1672,  p.  2G). 

'  The  form  of  a  Commission  of  Rebellion  is  given  in  The  Clerk's  Tutor  in  Chancery 
by  W.  Brown,  2d  edition,  1694,  at  p.  276.  The  practice  goes  back  at  least  to  1594 
(see  the  form  of  that  year  given  in  Crompton's  Authoritie  et  Jurisdiction  des  Courts 
(ed.  1637,  fo.  47)). 

*  See  this  development  explained,  ante,  pp.  170-172.  *  5  Eliz.  c.  18, 


REFORM  BY  EQUITY  211 

sided  over,  the  House  of  Lords. ^  Later  still,  the  even  more 
cautious  title  of  Lord  Commissioner  (or  Commissioners)  of  the 
Great  Seal  was  frequently  employed ;  and  again,  in  1688,  it 
was  found  necessary  to  define  by  statute"  the  powers  of  these 
ofiicers.  Finally,  these  latter  officials  must  be  distinguished 
from  the  less  important  'Lords  Commissioners  to  Hear  Causes  ' 
who  appeared  during  the  Commonwealth  and  after;  for  these 
last  had  no  power  to  affix  the  Great  Seal,  which,  during  their 
tenure  of  office,  was  usually  retained  by  the  monarch  himself. 
But  these  makeshifts  gradually  gave  way  before  the  long 
succession  of  distinguished  Equity  judges  who  adorned  the 
Court  of  Chancery  during  the  century  which  followed  the 
Restoration.  Clarendon's  immediate  successor.  Sir  Orlando 
Bridgman,  was,  perhaps,  more  famous  as  a  common  lawyer  and 
a  conveyancer,  than  as  an  exponent  of  equity.  jNIost  of  the 
royalist  estates  which  escaped  confiscation  during  the  Civil 
War  had  owed  their  escape  to  his  ingenious  drafting  of  family 
settlements.  But  he  was  followed  by  Lord  Nottingham,  one 
of  those  '  black,  funereal  Finches,'  who  had  played  a  somewhat 
doubtful  part  in  the  troubled  years  of  Charles  I ;  and  Lord 
Nottingham's  well-known  title,  '  Father  of  Equity,'  indicates 
the  respect  which  his  decisions  inspired.  Among  the  Chan- 
cellors of  the  period  w^ere  inen  of  high  birth,  like  Simon,  Earl 
Harcourt,  who  traced  descent  from  a  companion  of  the  con- 
queror of  Normandy,  and  from  a  cadet  of  that  house  who  had 
accompanied  the  conqueror's  descendant  in  1066,  and  like 
Talbot,  whose  family  had  given  warriors,  statesmen,  and  bishops, 
to  his  country.  But  there  were  also,  no  less  famous  and  up- 
right, men  of  humbler  birth,  like  Somers,  the  great  lawyer  of 
the  Revolution,  and  Philip  Yorke,  afterwards  the  great  Earl 
of  Hardwicke.  It  is  to  the  work  of  these  men  that  the  term 
'equity'  is  peculiarly  appropriate.  For,  while  they  did  not  re- 
nounce the  ideals  of  their  predecessors  — either  that  'grace '  which 
enabled  them  to  insist  that  all  their  remedies  were  discretionary, 
not  of  strict  right,  or  that  'conscience'  which  enabled  them  to 
administer,  and  justified  them  in  administering,  the  severest  of 
interrogatories  —  they   added   a   new  ideal,   of  equality.     For, 

^  The  writer  believes  it  to  be  still  the  technical  rule,  that  the  woolsack,  on  which 
the  President  sits,  is  not  within  the  sacred  limits  of  the  House  of  Lords. 
2  1  W.  «fe  M.  St.  I,  c.  21,  s.  2. 


212    A  SHORT   HISTORY  OF  ENGLISH  LAW 

of  course,  in  its  origin  'equity'  is  simply  equality  or  likeness; 
and  the  maxim  'equality  is  equity,'  if  it  is  not  a  mere  identical 
proposition,  reads  just  as  well  either  way.  Particularly  in  the 
great  new  department  of  Equity,  which  was  concerned  with  the 
administration  of  the  assets  of  deceased  persons,  did  the  Chan- 
cellors apply  this  new  ideal  of  equality. 

But,  before  proceeding  to  sketch  the  developments  of  equi- 
table doctrine  which  took  place  between  the  Restoration  and 
Other  Chan-  ^hc  end  of  the  eighteenth  century,  it  may  be  well 
eery  Officials  ^q  realize  that  this  task  was  not  effected  by  the 
occupants  of  the  woolsack  alone.  Long  before  the  end  of  the 
sixteenth  century,  the  Chancery  had  gathered  to  itself  a  vast 
staff  of  administrative  officials ;  some,  like  the  Cursitors  and 
the  Clerks  of  the  Hanaper  and  Petty  Bag,  concerned  more  with 
the  common  law  and  revenue,  than  the  equitable  side  of  the 
Chancery  jurisdiction,  others,  like  the  Masters,  the  Registrars, 
and  the  Six  Clerks  (the  latter  of  whom  were  actually  made  a 
corporation  in  1635  ^)  occupied  mainly  with  equity  business. 
The  great  growth  of  the  latter  class  (the  Six  Clerks  are  said  to 
have  had  sixty  clerks  under  them-)  was  due  to  the  development 
of  the  administrative,  as  opposed  to  the  litigious  side  of  the 
equitable  jurisdiction ;  to  the  taking  of  accounts,  the  execution 
of  commissions  for  partition,  the  guardianship  of  infants,  and, 
most  of  all,  to  the  management  of  the  estates  of  deceased  per- 
sons. It  was  in  connection  with  the  high  officials  known  as 
Masters,^  that  there  occurred  the  second  great  judicial  scandal 
within  a  century.^  In  accordance  with  a  practice  eminently 
characteristic  of  the  period,  administration  suits  were  treated 
as  the  private  property  of  the  ]\Iasters  to  whom  they  were 
allotted ;  and,  as  these  suits  often  lasted  for  many  years,  the 
Masters  had,  in  effect,  the  custody  of  the  whole  of  the  funds 
involved  during  that  period,  and  made  large  profits  by  invest- 
ment of  them.  The  inevitable  result  followed.  At  the  time 
of  the  South  Sea  Bubble,  in  1720,  the  IMasters  speculated  heavily 
in  South  Sea  Stock ;  and,  when  the  crash  came,  there  was  a  huge 

'  Ex  parte  the  Six  Clerks  (1798)  3  Vcs.  580.  (But  the  validity  of  the  incorpora- 
tion was  disputed.) 

2  Scargill-Bird,  Guide  to  the  Documents  in  the  Public  Record  Office,  p.  8. 

'  Specimens  of  the  early  work  of  the  Masters  in  Chancery  may  be  seen  in  the 
Acta  CanceUariae,  liy  Cecil  Munro  (1847). 

■■  The  first  was,  of  course,  the  impeachment  of  Francis  Bacon  for  corruptixm 
in  1621. 


REFORM  BY  EQUITY  213 

deficit.  The  chief  odium  fell  upon  the  Chancellor,  Lord  Mac- 
clesfield. He  was  impeached,  and  made  to  pay  a  heavy  fine, 
which  went  in  partial  reparation  of  the  suitors'  wrongs.  It 
fell  to  Lord  King,  Lord  Macclesfield's  successor,  to  make  pro- 
vision against  the  recurrence  of  such  a  scandal ;  and  the  meas- 
ures which  he  took  to  originate  the  office  of  Accountant-General 
in  Chancery,  produced  so  much  friction  in  the  purlieus  of  the 
Court,  that  from  the  heated  atmosphere  sprang  the  most  inter- 
esting, if  not  the  most  picturesque  quarrel  in  the  judicial  history 
of  the  eighteenth  century.  An  added  flavour  is  given  to  the 
affair  by  the  fact  that  the  gladiators  in  the  struggle  concealed 
their  identity  under  a  veil  of  anonymity  which  has  at  least 
succeeded  in  puzzling  posterity. 

In  the  year  1726,  less  than  two  years  after  the  fall  of  Lord 
Macclesfield,  appeared  a  small  anonymous  History  of  the  Chan- 
Master  of  cery,^  which  made  certain  reflections  on  pretentions 
the  Rolls  alleged  to  have  been  put  forward  by  the  most  impor- 
tant of  all  the  Chancery  officials,  the  Master  of  the  Rolls,  to 
a  share  in  the  judicial  authority  of  the  Court  of  Chancery. 
The  whole  subject  bristled  with  delightful  possibilities.  On 
the  one  hand,  it  was  undeniable,  that  the  Master  of  the  Rolls, 
who,  by  virtue  of  his  duties  as  custodian  of  the  priceless  records 
of  the  Chancery,  was  certainly'  at  the  head  of  its  administrative 
staff,  had  in  fact  exercised,  for  at  least  a  century,  judicial  duties, 
though  of  a  subordinate  kind.  Masters  of  the  Rolls  had,  in 
quite  recent  years,  been  appointed  Commissioners  to  Hear 
Cases  in  Chancery;^  and,  in  days  further  back,  had  even  been 
given  temporary  custody  of  the  Great  Seal.^  Further,  and  this 
was  the  strongest  practical  argument  of  all,  it  was  manifestly 
impossible  for  the  Chancellor,  with  his  multifarious  duties,  to  get 
through  the  whole  judicial  work  of  Chancery  unaided.  These 
facts  were  duly  pointed  out  in  the  anonymous  answer  to  the 
History  of  the  Chancery,  viz.  the  Discourse  of  the  Judicial  Author- 
ity of  the  Master  of  the  RoIIs,^  which  quickly  followed,  and  which 
is  attributed  to  the  pen  of  the  witty  and  accomplished  Sir  Joseph 
Jekyll,  then   Master  of  the  Rolls.     But  it  was  argued,   with 

1  London  of  that  date.     Published  by  Walthoe. 

2  E.g.  Sir  Julius  Caesar  in  1621,  and  Sir  Joseph  Jekyll  himself  in  1725. 

'  E.g.  John  de  Waltham  in  1383,  Simon  Gaunstede  in  1422,  and  Robert  Jurkham 
in   1463. 

^London  (Williamson),  1728  (2d  edition). 


214    A   SHORT  HISTORY  OF  ENGLISH  LAW 

great  force,  in  a  really  learned  reply,  The  Legal  Judicature  in 
Chancery  Stated,  which  appeared  in  1727/  and,  like  its  pred- 
ecessor, the  History  of  the  Chancery,  was  attributed  to  Sir 
Philip  Yorke,  afterwards  Lord  Hardwicke,^  that  the  desirability 
of  a  state  of  things  does  not  prove  that  such  a  state  exists,  that 
all  the  alleged  instances  of  the  exercise  of  supreme  judicial 
authority  by  Masters  of  the  Rolls  were  to  be  accounted  for  by 
the  fact  that,  at  the  times  in  question,  the  Masters  had  been 
enjoying  special  privileges  by  virtue  of  their  custody  of  the  Great 
Seal  or  their  special  Commissions,  and  that,  in  law,  the  whole 
executive  power  of  the  Chancery  lay  in  the  Great  Seal,  which, 
save  in  the  exceptional  cases  noted  above,  was  the  sole  posses- 
sion of  the  Chancellor  or  Keeper. 

Whatever  may  have  been  the  historical  merits  of  the  quarrel, 
the  obvious  result  was  to  demonstrate  the  necessity  for  regu- 
statute  of  larizing  the  position  of  the  Master  of  the  Rolls, 
^^^°  and  to  afl'ord  judicial  assistance  to  the  Chancellor. 

Accordingly,  in  the  year  1730,  a  statute  was  passed  giving  formal 
authority  to  the  Orders  and  Decrees,  past  and  future,  of  the 
Rolls,  to  the  extent  warranted  by  practice ;  ^  but  with  a  proviso 
that  they  should  not  be  enrolled  of  record  before  being  signed 
by  the  custodian  of  the  Great  Seal,  by  whom  they  could,  accord- 
ingly, be  reversed  or  amended  without  formal  appeal.^  Even, 
however,  when  the  new  office  of  Vice-Chancellor  was  created 
in  1813,^  the  judicial  position  of  the  Master  of  the  Rolls  was 
still  left  in  its  anomalous  position  ;  and,  though  his  jurisdiction 
was  extended  by  the  Chancery  Reform  Act  of  1833  to  the  hear- 
ing of  motions,  pleas,  and  demurrers,^  he  still  remained,  until 
the  establishment  of  the  Court  of  Appeal  in  Chancery  in  the 
year  1851,^  not  merely  a  subordinate  judge,  but,  in  theory,  a 

'  London  of  that  date.     Published  by  Walthoe. 

*  A  curious  legend  persists  in  attributing  the  authorship  of  the  Legal  Judicature 
to  Sir  Joseph  Jekyll,  and  the  Judicial  Discourse  to  Sir  Philip  Yorke.  Sir  Joseph 
was  a  noted  wag ;  but  he  would  hardly  have  written  a  book  to  belittle  the  office 
which  he  held  for  21  years. 

'  The  Act  docs  not  specify  what  this  extent  was ;  but,  apparently,  little  difficulty 
was  felt  on  the  point. 

■*  When  once  enrolled,  a  decree  could  not  be  altered  without  an  appeal  to  the 
House  of  Lords. 

=•  53  Geo.  Ill,  c.  24.  «  3  &  4  Will.  IV,  c.  s.  94,  24. 

^  14  &  15  Vic.  c.  83.  Inasmuch  as  that  statute  (s.  5)  invested  the  new  Lords 
Justices  with  all  the  jurisdiction  of  the  Chancellor,  it  might  be  argued  that  it  still 
left  the  Master  of  the  Rolls  and  Vice-Chancellors  in  the  unstable  position  of  mere 
reporters.     But  the  Judicature  Acts  definitely  placed  these  officers  and  their  sue- 


REFORM  BY  EQUITY  215 

mere  preliminary  hearer,  whose  orders  were  of  no  judicial  author- 
ity till  confirmed  by  the  Chancellor.  As  a  matter  of  fact,  his 
house  on  the  east  side  of  Chancery  or  Chancellor's  Lane,  the 
ancient  foundation  for  converted  Jews,  which  had  been  con- 
firmed to  his  great  predecessor  John  de  Waltham  in  1383,^ 
had  become  the  centre  of  Chancery  business;  and  though  the 
'Rolls  Court'  was  moved,  on  the  opening  of  the  new  Royal 
Courts  of  Justice,  to  that  building,  the  stately  pile  of  the  Record 
Ofiice,  rising  on  the  site  of  the  ancient  garden  of  the  Masters  of 
the  Rolls,  preserves  the  historic  continuity  of  the  scene. 

We  pass  now  to  a  sketch  of  some  of  the  leading  equitable 
doctrines  established  in  the  last  half  of  the  seventeenth  and 
the  eighteenth  centuries ;  and  this  process  will  illustrate,  better 
than  any  other  means,  that  peculiar  attitude  of  Equity  towards 
Common  Law  which  is,  juristically  speaking,  at  once  the  great 
mystery  and  the  great  interest  of  reform  by  equity. 

We  begin,  then,  by  remembering,  that  this  is  not  the  creative, 
but  the  developing  period  of  equitable  doctrine.  As  has  been 
pointed  out,  the  new  type  of  Chancellor  was  essentially  a 
lawyer,  with  all  a  lawyer's  caution  and  respect  for  precedent. 
One  great  exception  there  is,  no  doubt,  from  this  principle; 
and  to  that  exception  attention  will  be  paid  later.  But  for 
the  most  part,  in  the  period  now  under  review,  it  is  not  the 
extension,  but  the  intension  of  jurisdiction,  which  is  the  striking 
feature  of  the  history  of  Equity. 

No  better  illustration  of  this  cautious  attitude  can  be  chosen, 
than  the  subject  of  mortgages.  In  1681  Lord  Nottingham, 
in  the  leading  case  of  Harris  v.  Harris,^  firmly  laid 
down  the  principle :  *  once  a  mortgage,  always  a 
mortgage ' ;  a  doctrine  which  not  only  rendered  all  agreements 
in  a  mortgage  for  forfeiture  of  the  right  to  redeem  invalid,  but 
also  rendered  invalid  all  incumbrances  of  or  dealings  with  the 
property  by  the  mortgagee,  as  against  a  mortgagor  coming  to 
redeem.     In  some  respects,   this  doctrine   was    pushed  to   an 

cessors  in  the  rank  of  judges  of  First  Instance  ;  though  the  Master  of  the  Rolls  has 
since  become  a  member  of  the  Court  of  Appeal  exclusively. 

1  Calendar  of  Patent  Rolls  (1897)  p.  269. 

2  (1681)  1  Vern.  33.  The  earliest  case  known  to  the  writer  as  illustrating  the 
doctrine,  is  Courtrnan  v.  Conyers  (1600)  Acta  Cancellariae,  764.  And  there  the 
mortgagee  was  alleged  to  have  purposely  absented  himself  on  the  day  fixed  for 
redemption,  in  order  to  avoid  receiving  payment.  In  other  words,  it  was  a  case  of 
fraud. 


216    A   SHORT  HISTORY   OF  ENGLISH  LAW 

extreme  length ;  with  the  result,  that  both  parties  were  preju- 
diced by  the  inability  of  either  to  make  binding  dispositions 
of  the  property  as  a  whole.  But  the  principle  has  been  pro- 
ductive of  fruit  even  in  recent  years ;  and  the  recent  applica- 
tions of  the  doctrine  of  'clogging  the  equity'^  will  be  familiar 
to  modern  lawyers. 

On  the  other  hand,  Equity  in  this  period  laid  down  rules 
in  fa^■our  of  the  mortgagee,  or  owner  of  the  legal  estate,  which 
show,  in  the  opinion  of  modern  legislators,  an  almost  excessive 
respect  for  legal  doctrine.  Thus  in  Hedworth  v.  Primate,^  in 
1662,  and  March  v.  Lee,^  in  1670,  Equity  tribunals  established 
the  rule  of  Tacking,  by  which  the  owner  of  a  second  or  later 
equitable  charge,  who  buys  up  the  legal  mortgage  of  the  first 
mortgagee,  may  squeeze  out  any  intervening  (equitable)  incum- 
brancer, of  whose  existence  he  had  no  notice  when  he  lent  his 
money  on  the  equitable  charge.^  Again,  in  Shuttleicorth  v. 
Layrock,^  in  1684,  and  Pojje  v.  Onsloic,''  in  1692,  Courts  of  Equity 
formulated  the  doctrine  of  Consolidation;  by  which  a  mort- 
gagor who  has  mortgaged  two  estates  to  the  same  mortgagee 
cannot,  after  the  day  fixed  for  re-payment  has  gone  by,  compel 
the  mortgagee  to  allow  one  mortgage  to  be  redeemed  without 
the  other.  ^  It  is,  however,  quite  worthy  of  note,  that  both 
these  rules  were  founded  by  judges  who,  though  they  were 
then  sitting  in  Equity  tribunals,  were,  in  fact,  rather  common 
lawyers  than  equity  judges.^ 

Again,  in  the  attitude  of  Equity  towards  the  law  of  contract, 
we  notice  a  profound  respect  for  the  Common  Law,  tempered 
g    ^.g  by  equitable  considerations.     Not  only  did  Equity 

Perform-  refusc  to  cuforcc  Contracts  invalid  at  Common  Law ; 
but,  in  one  case,  in  its  dislike  of  mere  formalities,  it 
went  beyond  the  strictness  of  the  Common  Law.  Thus,  a 
contract  under  seal,  in  fact  made  without  consideration,  could 
be  enforced  by  an  action  at  law,  for  historical  reasons;    but 

'  Noakes  v.  Rice  [1902]  A.C.  24 ;    Bradley  v.  Carritt  [1903]  A.C.  253. 

2  Hardres,  318.  ^2  Ventr.  337. 

■*  The  rule  of  tacking  was  abolished  in  1874  by  the  Vendor  and  Purchaser  Act 
of  that  year  (s.  7),  but  re\aved  by  the  Land  Transfer  Act  of  1875  (s.  129). 

^  1   Vorn.  244.  »  2  Vern.  286. 

^  The  doctrine  of  consolidation  is  now  applicable  only  where  it  has  been  expressly 
reserved  (Conveyancing  Act,  1881,  s.  17).  It  has  been  extended  far  beyond  its 
primitive  simplicity   {Pledge  v.    White  [1896]  A.C.    197). 

**  The  rule  of  tacking  was  laid  down  by  Chief  Baron  Hale,  Lord  Keeper  Bridg- 
man,  and  Baron  Rainsford ;    the  rule  of  consolidation  by  Lord  Keeper  Bridgman. 


REFORM  BY  EQUITY  217 

Equity  would  not  aid  it  by  a  decree  of  specific  performance. 
And  though  Equity  admitted  that  'any  bond  was  good  enough, 
against  an  executor,'^  yet  it  would  not  allow  a  voluntary  bond 
to  be  paid  out  of  assets  until  all  creditors  for  value  had  been 
satisfied.^  Moreover,  courts  of  Equity  early  adopted  the 
principle,  that  specific  performance  would  not  be  ordered  where 
damages  were  an  adequate  remedy ;  and  Lord  Macclesfield 
carried  this  restraint  so  far  as  to  refuse  a  decree  for  transfer 
of  South  Sea  Stock,  though  at  the  time  only  a  limited  quantity 
was  procurable.^  Once  more,  the  '  conscience '  element  in 
Equity  refused  to  enforce  the  performance  of  an  '  unreasonable,' 
though  not,  technically,  an  illegal  or  oppressive  contract ;  * 
and  the  later  developments  of  the  doctrine  of  '  equitable  fraud,' 
as  applied  to  contracts,  are  well  known.^  But  the  most  valuable 
of  all  the  remedies  of  Equity,  in  such  cases,  was,  not  the  mere 
refusal  to  assist  in  oppression,  but  the  active  assistance  afforded 
to  the  oppressed  by  compelling  the  holder  of  an  oppressive 
document  to  deliver  it  up  to  be  cancelled.  This  remedy  was 
applied  by  Lord  Nottingham  in  1680.^  Only  in  one  respect 
did  Equity  relax  the  law  of  contract.  Generally  speaking, 
though  professing  themselves  not  to  be  strictly  bound  by  the 
words  of  the  Statute  of  Frauds,  equitable  tribunals  refused  to 
enforce  contracts  for  which  the  statutory  evidence  of  writing, 
required  by  that  statute,'^  was  not  forthcoming.  But  if  the 
defendant  had  fraudulently  prevented  the  proper  evidence 
being  used,^  or  had  admitted  in  his  pleadings  the  terms  of  the 
contract,^  or  if,  in  reliance  on  the  contract,  the  plaintiff  had 
incurred  loss  or  liability  in  part  performance  of  it,^°  then  a  Court 
of  Equity  would  decree  specific  performance ;  even  though  no 
action  lay  at  law.     It  will  be  observed,  however,  that  even  the 

1  Edwards  v.  Countess  of  Warwick  (1723)  2  P.  Wms.,  at  176. 

2  Jones  V.  Powell  (1712)  1  Eq.  Ca.  Ab.  84  (Lord  Harcourt). 

3  Cud.  V.  Rutter  (1719)   1  P.  Wms.  569. 

*  Philips  V.  D.  of  Bucks  (1683)  1  Vern.  227  (Lord  Keeper  Guilford). 

^  Notwithstanding  Derry  v.  Peek  (1889)  L.R.  14  App.  Ca.  337,  the  doctrine  of 
'  equitable  fraud '  is  still  law.  By  virtue  of  it,  the  Court  constantly  refuses  to  decree 
specific  performance,  and  even  orders  the  contract  to  be  cancelled,  where  there  has 
been  innocent  misrepresentation  {Redgrave  v.  Hurd  (1881)  20  Ch.  D.  1).  All  that 
Derry  v.  Peek  decided  was,  that  no  action  of  Tort  could  be  based  on  '  equitable 
fraud.' 

^  Skapholme  v.  Hart,  Ca.  temp.  Finch,  477.         ''  29  Car.   II   (1677)   c.  3,  s.  4. 

^Maxwell  v.  Mountacute  (1719)  Pre.  Cha.  526  (Lord  Macclesfield). 

^  Croyston  v.  Banes  (1702)  Pre.  Cha.  208  (Sir  John  Trevor,  M.R.). 

^'^  Butcher  v.  Stapley  (1685)  1  Vern.  364  (Lord  Guildford). 


218    A  SHORT  HISTORY  OF  ENGLISH  LAW 

Statute  of  Frauds  does  not  in  such  cases  make  void  the  contract ; 
it  merely  renders  it  unenforceable,  i.e.  creates  a  procedural, 
not  a  substantial  difficulty. 

We  have  seen/  in  dealing  with  the  preceding  period,  that 
the  Court  of  Chancery  had  succeeded,  without  much  trouble, 
in  escaping  the  threatened  extinction  of  its  impor- 
tant jurisdiction  in  trusts.  By  common  consent, 
as  has  been  pointed  out,  three  classes  of  'uses,'  viz.  (a)  active 
uses,  (6)  uses  of  leaseholds,  and  (c)  'uses  upon  uses,'  had  escaped 
the  meshes  of  the  Statute  of  Uses,  and,  under  the  popular  name 
of  'trusts'  (though  there  is  no  technical  value  in  the  word)  had 
completely  re-established  the  doctrine  of  equitable  interests, 
which  indeed,  so  far  as  'pure'  personalty  was  concerned,  had 
never  been  touched  by  the  statute.  It  remained  only  for  the 
Chancellors  of  the  Restoration  and  the  eighteenth  century  to 
fill  up  the  outline  sketched  by  their  predecessors. 

This  task  they  performed  b}'  the  application  of  several  prin- 
ciples which  were,  indeed,  not  new,  but  had  not  previously 
been  carried  out  to  their  logical  consequences. 

The  first  of  these  was  the  protection  of  the  trustee's  estate 
against  claims,  founded  on  his  delinquencies  or  acts,  which 
.  would  have  been  inconsistent  with  protection  of  the 
of  Trustee's  beneficiaries.  Obviously  this  doctrine  could  not  be 
^  *  ^  pushed  too  far,  if  the  whole  system  of  tenures  were 

not  to  go  by  the  board ;  the  lord  must  have  his  rents,  reliefs,  and 
other  ordinary  'incidents.'  But  there  were  other  liabilities  of 
the  legal  estate  which  stood  on  a  different  footing ;  liabilities 
in  which  the  claimant  occupied  more  or  less  the  position  of  a 
volunteer,  or  at  any  rate  of  a  person  seeking  an  unexpected 
benefit.  Thus,  for  example,  it  seemed  hard  that  the  cestui  que 
trust  should  lose  his  interest  through  the  escheat  or  forfeiture 
of  the  trustee's  estate  by  the  failure  of  the  latter's  heirs,  or  his 
conviction  or  attainder  for  treason  or  felony.  So  far  as  escheat 
was  concerned,  Chief  Justice  Bridgman  was,  indeed,  though  on 
rather  doubtful  evidence,  reported  to  have  said,  in  Geary  v. 
Bearcroft,"^  that  the  trust  would  be  enforced  against  the  lord 
taking  by  escheat ;  and  this  view  was  repeated  by  Sir  John 
Trevor,    M.R.,  in    Eales   v.    England.^     But   these   were   mere 

'  Ante,  pp.   100,  101.  ^  (lOfiC)  Part.  67  (felony). 

'  (1702)  Pre.  Cha.,  at  p.  202  (failure  of  heirs). 


REFORM  BY  EQUITY  219 

dicta,  and  were  opposed  by  dicta  of  equally  eminent  judges, 
especially  in  the  famous  case  of  Burgess  v.  Wheate,^  afterwards 
to  be  referred  to ;  and  eminent  text-book  writers,  who  were 
also  judges,^  also  expressed  a  contrary  opinion.  With  regard 
to  forfeiture  for  treason,  though  Sir  INIatthew  Hale  gave  relief 
to  a  mortgagor  in  1G67,  yet  he  guarded  himself  carefully  against 
being  assumed  to  rule  that  the  relief  would  be  given  in  the 
case  of  trusts ;  ^  and  Sanders,'*  though  he  inclines  in  favour  of 
relief,  can  give  no  authority  for  his  view.  In  fact  it  w^as  not 
settled  until  1834,^  that  neither  the  crime  nor  the  failure  of 
heirs  of  the  trustee  should  endanger  the  interest  of  the  cestui 
que  trust. 

With  regard  to  the  claims  of  a  trustee's  widow  to  dower, 
the  action  of  the  Courts  was  more  prompt,  though,  perhaps,  less 
logical.  For,  though  it  has  always  been  recognized  that  a 
wife  is  a  purchaser  for  value.  Lord  Nottingham  said,  as  early 
as  1678,^  that  it  was  the  constant  practice  to  relieve  against 
such  claims ;  and  the  rule  was  extended  to  claims  of  freebench 
by  the  widows  of  copyhold  trustees  in  1681.^  Until  quite 
recently,  women  were  so  rarely  made  trustees,  that  the  question 
of  claims  to  curtesy  of  trust  estates  does  not  appear  to  have 
arisen. 

An  even  more  important  protection  for  the  interest  of  the 
cestui  que  trust  was  gained  when  Lord  Keeper  Finch  (afterwards 
Lord  Nottingham)  in  1670,^  clearly  enunciated  the  principle 
that  the  debts  of  the  owner  of  the  legal  estate  cannot  be  en- 
forced against  the  interest  of  the  beneficiary ;  and  this  rule  was 
definitely  applied  to  trust  estates  by  Lord  Cowper,  in  1715.^ 
But  the  safety  of  the  beneficiary  from  this  danger  was  not 
complete,  until  it  had  been  ruled,  that  even  the  bankruptcy  of 
the  trustee  did  not  affect  the  cestui  que  trust's  interests.  This 
protection  was,  howeyer,  definitely  secured  in  the  year  1725, 
by  the  case  of  Bennet  v.  Davis}^ 

1  (1759)   1  Ed.  177. 

^  E.g.  Gilbert,  C.  B.,  Law  of  Uses  and  Trusts  (2d.  edition),  p.  10,  followed  by 
Lord  St.  Leonards  (Sugden)  in  the  3d.  edition.   (1811). 

'  Pawlett  V.  A.  G.,  Hardres,  465.  (It  must  be  recollected,  that,  even  in  the  case  of 
treason,  copyholds  were  forfeited  to  the  lord  of  the  manor,  not  to  the  Crown  {Corn- 
wall's Case  (1683)   2  Ventr.  38).) 

*  Essay  on  Uses  and  Trusts,  253.  ^  4  &  5  Will.  IV,  c.  23. 

*  Noel  V.  Jevon,  Freem.  Cha.  Ca.  43.  ^  Bevant  v.  Pope,  ibid.,  71. 

8  Burgh  v.  Francis,  1  Eq.  Ca.  Ab.  321. 

9  Finch  V.  E.  of  Winchilsea,  1  P.  Wms.  277.         "  2  P.  Wms.  316  (Jekyll,  M.  R.). 


220    A   SHORT   PIISTORY  OF  ENGLISH  LAW 

A  second  principle,  early  adopted  by  Chancery,  consisted  of 
applying  the  rules  of  the  legal  estate,  so  far  as  possible,  to  equi- 
table interests;  with  the  result  of  making  the  resemblance 
between  the  two  so  close,  as  sometimes  to  deceive  the  super- 
ficial observer.  Whether  the  adoption  of  this  principle  did  not 
destroy  an  opportunity  of  introducing  desirable  reforms  into 
land  law,  may  well  be  doubted ;  but  it  would,  perhaps,  have 
been  unreasonable  to  expect  that  even  Courts  of  Equity  in  the 
eighteenth  century  should  show  much  boldness  in  that  direc- 
tion. Thus,  though  a  widow  was  not  allowed  until  1833  to 
claim  dower  out  of  her  late  husband's  equitable  interest  of 
inheritance,^  yet  a  husband  was  held  entitled  to  curtesy  in 
the  equitable  interests  of  his  wife;-  and,  generally  speaking,  all 
rules  as  to  inheritance,^  quantity  of  interest,  limitation,  and 
rights  of  limited  owners,^  which  applied  to  legal  estates,  except 
in  so  far  as  these  depended  directly  on  the  maintenance  of 
seisin  or  possession  of  the  land,^  were  applied  by  analogy  to 
equitable  interests.  It  was,  however,  laid  down,  in  the  well- 
known  case  of  Burgess  v.  Wheate,^  that  there  could  be  no  escheat 
of  an  equitable  interest ;  but  that,  on  failure  of  the  heirs  of 
the  owner  of  an  equitable  fee  simple,  who  had  died  intestate, 
his  interest  should  not  be  enforceable  against  the  owner  of  the 
legal  estate. 

No  account  of  the  law  of  trusts  in  this  period  would,  of  course, 
be  adequate  without  a  reference  to  the  Statute  of  Frauds; 
statute  of  ^^^^  ^his  reference  is  not  so  irrelevant  as  it  might 
Frauds  appear   in   this   chapter,    for   it   is   generally   agreed 

that  the  framing  of  the  statute  was  left  in  judicial  hands.^ 

1  It  appears  that  at  one  time  there  was  considerable  doubt  on  this  point.  In 
Bodmin  v.  Vandependy  (1685)  1  Vern.  356;  Shower,  P.  C.  69,  it  was  held  that  a 
widow  could  not  enforce  her  claim  against  the  inheritance,  when  an  active  term  was 
outstanding  ;  but,  where  the  term  was  satisfied,  it  was  held  (Dudley  v.  Dudley  (1705) 
Pre.  Cha.  241)  that  relief  would  be  granted  to  her.  These  were,  however,  legal 
claims  ;  and  though  it  was  hold  by  Sir  Joseph  Jekyll,  M.R.,  in  1732  (Banks  v.  Sutton, 
2  P.  Wms.  700),  that  a  widow  might  be  endowed  out  of  an  equity  of  redemption,  this 
decision  was  overruled  in  the  following  year  by  Lord  Talbot,  in  the  case  of  Chaplin 
V.  Chaplin  (3  P.  Wms.  229).  The  reasons  are  explained  by  Lord  Redesdale  in 
D'Arcy  v.  Blake  (1805)   2  Sch.  &  Lcf.  387. 

2  Sweetapple  v.  Bindon  (1705)  2  Vcrn.  536;  Casborne  v.  Scarfe  (1737)  1  Atk.  603. 
^Blackburn  v.  Graves  (1675)  1  Mod.  102;  Edwin  v.  Thomas  (1687)  1  Vern.  489. 
■*  See  the  general  principle  laid  down  by  Lord  Cowper  in  Watts  v.  Ball  (1709)  1 

P.  Wms.  108. 

'  E.g.  failure  of  contingent  remainders.  '  (1759)  1  Ed.  177. 

'  The  credit  is  diversely  and  variously  attributed  to  Lord  Nottingham,  Sir 
Matthew  Hale,  and  Sir  Leolinc  Jenkins. 


REFORM   BY   EQUITY  221 

The  Statute  of  Frauds  had  two  substantial  effects  on  the 
law  of  trusts.  In  the  first  place,  by  requiring  all  creations  of 
trusts  of  lands  to  be  evidenced  by  writing/  and  all  assignments 
of  trusts  whatsoever,  to  be  in  writing,-  the  statute  practically 
elevated  the  creation  and  transfer  of  trusts  to  the  dignity  of 
professional  conveyancing,  and,  incidentally,  dispelled  the  last 
lingering  doubt,  which  had  even  survived  the  statute  of  Richard 
III,^  as  to  the  assignability  of  trust  interests.  In  the  second, 
by  making  equitable  interests  in  land  available  for  payment  of 
"the  debts  both  of  living  and  deceased  cestids  que  trustent,^  it 
fostered  the  view"  that  such  assets  were  ordinary  property. 
Incidentally,  by  excepting  from  the  requirement  of  written 
evidence  all  trusts  arising,  'by  the  implication  or  construction 
of  la w,'^  the  statute  revived  a  vexed  question  as  to  the  proper 
inference  to  be  drawn  from  a  voluntary  conveyance  of  land,  in 
which  no  use  was  expressed.  The  Court  of  Chancery  had  been 
strongly  inclined  to  hold,  that  such  a  conveyance,  where  the 
donee  was  not  in  loco  filii  to  the  donor,  raised  an  implied  use 
in  the  donor's  favour ;  and  this  tendency,  which  was  wholly 
opposed  to  common  law  principles,  was  rather  favoured  by  the 
words  of  the  statute.  But  by  two  useful  decisions  given  by 
Lord  Hardwicke  in  17-iO  and  the  following  year,^  it  was  at 
length  established,  that  a  voluntary  conveyance,  even  to  a 
stranger,  does  not  of  itself  import  a  secret  trust  for  the  donor. 
The  rule  is,  of  course,  quite  different  where  there  is  a  purchase 
in  the  name  of  a  stranger.  In  that  case,  there  is  clearly  a 
presumption  of  a  trust  for  the  person  who  actually  finds  the 
money. '^ 

Finally  in  connection  with  the  subject  of  trusts,  it  may  be 
mentioned  that  it  was  Lord  King,  not  otherwise  very  eminent 
as  an  Equity  judge,  who  laid  down,  in  the  leading  case  of  Keech 
v.  Sandford,^  decided  in  1726,  the  great  principle,  that  any 
profit,  direct  or  indirect,  made  by  a  trustee  out  of  his  position 
as  trustee,  should  be  held  by  him  on  behalf  of  his  cestuis  que 
trustent.  In  that  case,  the  lord  of  a  market  refused  to  renew 
an  expired  lease,  w^hich  had  been  held  on  trust,  either  to  the 
trustee  as  such  or  to  the  beneficiaries.     He  was  willing,  however, 

1  Statute  of  Frauds  (1677)  s.  7.  ^  Ibid.,  s.  9.  ^  1  Ric.  Ill  (1483)  c.  1. 

*  Statute  of  Frauds  (1677)  s.  10.  =  Ibid.,  s.  8. 

^  Lloyd  V.  Spillet  (1740)  2  Atk.  148;  Young  v.  Peachy  (1741)  ibid.,  254. 

^  Dyer  v.  Dyer  (1788)  Cox,  92.  ^2  Eq.  Ca.  Ab.  741. 


222    A   SHORT  HISTORY  OF  ENGLISH  LAW 

to  grant  a  renewal  to  the  trustee  personally.     It  was  held  that 
the  renewed  lease  formed  part  of  the  trust  estate. 

No  account  of  Equity  in  this  period  would  be  in  the  least 
adequate,  which  did  not  refer,  however  briefly,  to  the  action  of 
^  .  .  Chancery  in  building  up  the  doctrine  of  the  separate 
Women's  estate  of  a  married  woman.  For,  though  the  reports 
show  that,  even  before  the  Civil  War,  the  doctrine 
was  recognized,^  yet  it  was  the  Civil  War  itself,  with  its 
attendant  cloud  of  family  settlements,  which  ine\itably  left 
to  the  Restoration  Chancellors  the  task  of  elaborating  the 
system. 

At  the  common  law,  a  wife's  corporeal  chattels  passed  to 
her  husband  absolutely.  He  could,  if  he  pleased,  enforce, 
Common  o^  reduce  into  possession,  her  choses  in  action; 
Law  Rules  ^^j^,  if  he  did  not  do  so,  and  predeceased  her,  they 
survived  to  her.  By  virtue  of  this  doctrine,  he  could  also 
collect  the  rents  of  her  lands  from  the  day  of  the  marriage ; 
but  he  did  not  obtain  a  '  real '  interest,  or  estate,  in  her  lands 
of  inheritance,  until  the  birth  of  issue  by  her  capable  of  in- 
heriting. On  the  birth  of  such  issue,  however,  if  the  wife  were 
actually  seised  of  a  present  estate  of  inheritance,  the  seisin 
passed  to  the  husband  for  his  life,  under  the  name  of  'tenant 
by  the  curtesy.'  The  wife,  from  the  day  of  the  marriage, 
ceased  to  have  any  contracting  power ;  her  contracts,  if  they 
were  valid  at  all,  were  only  valid  as  the  contracts  of  her  hus- 
band, and  he  alone  (if  any  one)  was  liable  on  them.  He  was 
also  liable  for  her  ante-nuptial  debts,  whether  he  received 
any  property  with  her,  or  not ;  -  and  for  her  torts  committed 
before  or  during  the  marriage.  In  a  word,  her  legal  personality 
(but  not  that  of  her  heirs)  was  merged  in  his ;  to  such  an  extent 
that,  though  the  husband  could  not  affect  the  inheritance  of  her 
land,  yet  the  wife  could  not  dispose  of  it  otherwise  than  by 
Fine.  She  had  no  power  at  all  to  make  a  will  without  his  con- 
sent ;  and  he  could  not  even  authorize  her  to  make  a  will  of 
land."^ 

It  was  against  the  common  law  doctrine  which  gave  all  the 

'  Gorge  v.  Chansey  (1639)  1  Rep.  in  Cha.  67  (Lord  Coventry). 

^  It  was  ruled,  even  in  Equity,  after  some  doubt,  that  the  husband's  liability  did 
not  continue  after  the  wife's  death ;  even  though  he  had  received  a  large  property 
with  her  (Reard  v.  Stanford  (1735)  Ca.  temp.  Talbot,  173). 

'  34  &  35  Hen.  VIII  (1542)  c.  5,  s.  14. 


REFORM   BY   EQUITY  223 

wife's  personalty  to  her  husband  absohitely,  that  the  first 
'  Separate      revolt   occurred.     The   case   before   the   Civil    War/ 

^®  above    alluded   to,    was   that   of   a   married   woman 

separated  from  her  husband,  and  may,  on  that  account,  be 
regarded  as  exceptional.  Moreover,  it  only  affected  personalty. 
But  from  the  Restoration  onwards,  it  is  clear  that  Chancery 
would  protect  any  gift  to  a  married  woman  for  her  *  separate 
use,'  or  '  sole  and  separate  use,'  and  would,  to  carry  out  the 
donor's  intention,  effectually  protect  such  gift  from  the  debts, 
control,  or  engagements  of  the  husband.^  For  some  time  there 
lingered  a  doubt  whether  the  gift  could  be  made  before  mar- 
riage ;  ^  and,  for  some  less  time,  whether  it  could  be  made  with- 
out the  intervention  of  trustees.^  But  these  two  doubts  were 
ultimately  settled  in  the  affirmative ;  though,  as  the  story  of 
Roger  North's  brother  Dudley's  marriage  shows,^  a  direct  gift 
of  chattels  to  a  married  woman  for  her  separate  use  is  of  little 
value.  By  the  time  of  Addison,  the  practice  of  limiting  a  sepa- 
rate estate  had  grown  so  far  as  to  call  for  protest. 

But  Equity  did  not  content  itself  with  merely  protecting 
property  settled  upon  a  married  woman ;  in  certain  cases  it 
Equity  to  a     interfered  to  procure  a  settlement  of  her  property. 

et  ement  rpj^^  converse  of  the  husband's  right  to  his  wife's 
personalty  was  his  liability  to  maintain  her ;  and,  if  he  had 
manifestly  shown  himself  incapable  of  performing  this  liability, 
or  been  guilty  of  misconduct.  Equity  would  not  allow  him  or  his 
creditors  to  claim  property  coming  to  the  wife,  without  making 
some  provision  for  her.  The  first  instance  of  the  exercise  of 
this  jurisdiction  appears  to  have  been  in  the  case  of  Packer  v. 
Wyndham,^  where  a  man  had  clandestinely  married  a  wealthy 
lunatic.  The  ecclesiastical  court  pronounced  in  favour  of  the 
marriage ;  but  Chancery  refused  to  allow  the  wife's  fortune, 
which,  happily,  was  in  its  possession,  to  be  paid  to  the  husband, 
until  he  had  made  a  suitable  settlement  on  his  wife.     This 

1  Gorge  v.   Chansey   (1639)    1   Rep.   in  Cha.   67. 

2  Early  examples  are  Darcy  v.  Chute  (1663)  1  Cha.  Ca.  21  (showing  the  limits  of 
the  doctrine) ;  Haymer  v.  Haymer  (1678)  2  Vent.  343 ;  Cotton  v.  Cotton  (1693)  2 
Vern.  290. 

^  Finally  set  at  rest  by  the  leading  decision  in  Tullett  v.  Armstrong  (1838)  1  Beav.  1. 

*Bennet  v.  Davis  (1725)  2  P.  Wms.  315. 

6  Lives  of  the  Norths,  II,  par.  185.  (The  lady  was  the  daughter  of  the  great  Sir 
Robert  Cann,  of  Bristol.) 

®  (1715)  Pre.  Cha.  412.  The  date  of  the  order  decreeing  a  settlement  is  not 
given ;    but  it  must  have  been  a  good  deal  before  1715. 


224     A   SHORT  HISTORY  OF  ENGLISH  LAW 

*  equity  to  a  settlement'  soon  became  a  settled  doctrine  of  the 
Court,  and  was  enforced  not  only  against  the  husband  himself, 
but  his  creditors  claiming  through  him ;  ^  though,  somewhat 
narrowly,  the  Court  refused  to  extend  the  equity  in  favour  of 
children,  after  the  death  of  their  mother.^  It  is  to  be  observed, 
that  the  doctrine  was,  in  a  sense,  negative.  Where  the  hus- 
band's title  was  legal,  the  Court  could  not  interfere ;  it  was 
only  where  he  was  obliged  to  resort  to  a  Court  of  Equity  (in- 
cluding an  ecclesiastical  court) ^  that  the  opportunity  for  impos- 
ing terms  arose. 

Naturally,  there  was  some  little  doubt  as  to  the  wife's  powers  of 
dealing  with  this  new  kind  of  property.  The  Common  Law  was  so 
^,...  ,  unfamiliar  with  the  notion  of  alienation  bv  a  married 

WlIC  S  111  1  •  *^    ft 

Powers  of      woman,   except    through    the   formality    of    a    Fine, 
isposi  10       ^1^^^  .^  ^^j^  ^^  Equity  to  build  up  the  new  doctrine. 

From  the  earliest  cases,  it  appears  that,  with  regard  to  pure 
personalty,  a  married  woman's  right  to  dispose  of  her  separate 
estate,  even  by  will,  was  unquestioned ;  in  the  middle  of  the 
eighteenth  century,  Lord  Hardwicke  laid  it  down,  that  she 
might  'dispose  of  it  by  an  act  in  her  life  or  will,'  without  taking 
the  trouble  to  quote  an  authority.'*  But,  with  regard  to  land, 
there  was  more  hesitation.  Li  the  case  last  referred  to,  Lord 
Hardwicke,  though  he  inclined  to  think  that  the  married  woman 
might  dispose  of  separate  real  estate  by  the  medium  of  a  power 
of  appointment,^  or,  of  course,  bj^  a  Fine,  thought  that  she  could 
not  defeat  the  expectations  of  her  heirs  by  an  ordinary  will. 
Again,  it  had  been  held  as  early  as  1723,  by  Sir  Joseph  Jekyll, 
INI.R.,  that  the  bond  debt  of  a  married  woman  was  payable  out 
of  her  separate  personalty ;  "^  but  it  was  not  until  1778,  in  the 
well-known  case  of  Hulme  v.  Tenant,^  that  the  liability  was 
extended  to  her  separate  land.  When  this  point  was  reached, 
however,  the  alienability  of  the  separate  estate  had  proceeded 

^Jacobson  v.  WiUia?ns  (1717)  2  P.  Wms.  382  (Lord  Cowper). 

^  Scriven  v.   Tapley  (1704)  Anibl.  509  (Lord  Xorthington). 

'  Nicholas  v.  Nicholas  (1720)  Pre.  Cha.,  at  p.  548.  There  is  a  note  in  Tothill's 
Reports  of  a  case  of  Tanfield  v.  Davenport  (1638)  p.  114,  which,  if  correct,  would 
make  the  doctrine  of  'equity  to  a  settlement'  date  back  to  Charles  I's  time.  But  it 
is  too  vague  to  he  trustworthy. 

*  Peacock  v.  Monk  (1750)  2  Ves.  Sr.,  at  p.  191.  Perhaps  Lord  Hardwicke  for- 
got the  exception  of  reversionary  personalty. 

'  This  had  been  previously  admitted  in  Bertie  v.  Lord  Chesterfield  (1723)  9  Mod. 
31. 

«  Norton  v.  Turvil,  2  P.  Wms.  144.  "  Bro.  C.C.  16  (Lord  Thurlow). 


REFORM   BY   EQUITY  225 

so  far,  that  there  was  danger  lest  the  whole  elaborate  structure 
reared  for  the  protection  of  the  married  woman  should  fall  by 
its  own  weight. 

For  it  is  not  difficult  to  see  that,  to  place  a  married  woman 
in  the  legal  position  of  a  man,  as  regards  her  separate  property, 
is  to  afford  her  very  little  real  protection.  A  married  woman 
Restraint  on  needs  to  be  protected,  not  only  against  her  hus- 
Anticipation  band,  but  against  herself.  It  is  idle  to  secure  to 
her  separate  property ;  if  the  first  use  she  makes  of  her  security 
is  to  alienate  the  property.  Accordingly,  but  not  until  the 
limits  of  Equity  reform  had  been  nearly  reached,  Lord  Thurlow, 
the  last  of  the  reforming  Chancellors,  made  an  attempt  to  save 
the  situation,  by  inserting  the  'restraint  on  anticipation'  clause, 
i.e.  the  provision  in  a  settlement  which  makes  the  separate 
estate  (either  capital,  or  income,  or  both)  of  a  married  woman, 
incapable  of  alienation  or  anticipation,  direct  or  indirect,  so  long 
as  she  remains  a  married  woman.  Those  readers  who  have 
followed  the  history  of  the  earlier  periods  of  English  law,  will 
readily  realize  how  strongly  the  new  clause  was  opposed  to  the 
current  of  judicial  decisions,  which  had  been  all  for  breaking 
down  restraints  on  alienation.  More  than  that.  Just  at  the 
very  time  when  the  Court  of  Chancery  was  adopting  the  're- 
straint on  anticipation,'  it  was  actually  formulating  the  Rule 
against  Perpetuities,^  designed  to  prevent  the  tying  up  of  prop- 
erty. It  is  not  to  be  wondered  at,  therefore,  if  Lord  Thurlow's 
project  should  at  first  have  met  with  little  sympathy  in  the 
Courts.  Even  Lord  Thurlow  himself,  in  Pyhus  v.  Smith,^ 
was  compelled  to  uphold  the  alienation  of  settled  property  by  a 
wife  'while  the  wax  was  yet  warm  upon  the  deed.'  But  the 
evils  revealed  by  that  case  set  the  Chancellor  upon  devising  an 
improved  clause ;  and  at  length,  in  1817,^  even  the  cautious 
Lord  Eldon  admitted  the  validity  of  the  restraint.  Whether 
such  very  exceptional  treatment  of  the  property  of  a  married 
woman  can  be  justified  at  the  present  day,  is  an  open  question ; 
and  modern  legislation  has  allowed  the  restraint  to  be  removed 

1  E.g.  Stanley  v.  Leigh  (1732)  2  P.  Wms.,at  p.  689  (Jekyll,  M.R.)  ;  Stephens  v. 
Stephens  (1736)  Ca.  temp.  Talbot,  228;  Heath  v.  Heath  (1781)  1  Bro.  C.C.  147 
(Lord  Thurlow)  ;  Jee  v.  Audley  (1787)  1  Cox,  324  (Kenyon,  M.R.)  ;  finally  settled 
in  Cadell  v.  Palmer  (1833)  1  CI.  &  F.  372. 

2  (1791)   3  Bro.   C.C.  340. 

3  Jackson  v.  Hobhouse,  2  Mer.  483.  Perhaps  the  credit  of  the  first  actual  decision 
is  due  to  Lord  Alvanley  (Socket  v.  Wray  (1793)  4  Bro.  C.C.  483). 


226    A   SHORT  HISTORY  OF  ENGLISH  LAW 

in  certain  cases.^  But  it  is  indubitable,  that  the  original  intro- 
duction of  the  clause  is  one  of  the  most  striking  efforts  of  judicial 
law  reform  in  the  eighteenth  century. 

We  come  lastly  to  the  greatest  of  all  the  achievements  of  Equity 
in  this  period,  viz.,  the  acquisition  of  that  jurisdiction  in  the 
Admnstra-  Euinistration  of  the  estates  of  deceased  persons,  which 
tion  of  has  brought  so  much  grist  to  the  mills  of  Chancery. 

The  history  of  that  acquisition  has,  perhaps,  never 
been  adequately  told  ;    certainly  it  is  instructive  and  interesting. 

At  the  end  of  the  sixteenth  century,  the  jurisdiction  in  matters 
of  the  estates  of  deceased  persons  was  in  a  thoroughly  unsatis- 
factory state.  Owing  to  the  jealousy  with  which  the  King's 
Courts  had  for  centuries  excluded  the  ordinary  testamentary 
tribunals  from  any  question  concerning  land,  all  disputes  con- 
cerning the  validity  and  construction  of  devises,  and  all  ques- 
tions of  inheritance,  had  to  be  decided  in  the  courts  of  Com- 
mon Law.  Similarly,  to  the  very  limited  extent  to  which  the 
creditor  of  a  deceased  person  could  enforce  payment  of  his 
debt  out  of  the  real  estate  of  his  debtor,  he  had  to  sue  the 
heir  in  a  Common  Law  tribunal.  In  the  same  wa}',  the 
recovery  of  debts  by  and  against  personal  representatives 
could,  in  effect,  only  be  carried  on  in  the  Common  Law  courts; 
for,  if  the  Church  courts  had  ever  afforded  adequate  process  in 
such  cases,  the  contempt  into  which  they  had  fallen  since  the 
Reformation,  and  the  increasing  efficiency  of  Common  Law 
remedies,  had  virtually  robbed  them  of  their  jurisdiction.  To 
this  necessity  of  resorting  to  the  formal  tribunals  of  the  Com- 
mon Law,  the  administration  of  assets  owes  two  at  least  of  its 
most  marked  and  unsatisfactory  features  at  the  present  day, 
viz.,  the  rights  of  Retainer  and  Preference.  Liasmuch  as  an 
executor  could  not  sue  himself  in  a  Common  Law  court,  he  was 
allowed  to  retain  any  debt  due  to  him  from  the  testator,  in 
priority  to  all  other  creditors  of  the  same  degree ;  the  argument 
being,  that  he  ought  not  to  be  in  a  worse  position  than  a  stranger, 
who  could  have  sued  the  executor  at  once  and  compelled  him 
to  pay.^     The  last  consideration  gave  rise  to  the  equally  un- 

*  Conveyancing  Act,  1881,  s.  39;  Married  Women's  Property  Act,  1893,  s.  2; 
Trustee  Act,  1893,  s.  45. 

-  In  the  case  of  administrators,  the  Courts  of  Probate  (not  very  effectively) 
framed  their  bond  of  security  in  such  a  way,  that  it  prevented,  or  was  supposed  to 
prevent,  the  operation  of  these  technical  rules. 


REFORM  BY  EQUITY  227 

satisfactory  right  which  the  personal  representative  still  has,  of 
paying  one  creditor  before  others  of  the  same,  or  (now)  even  of  a. 
higher  degree.^  For,  if  the  executor  had  been  sued  by  the  creditor^ 
his  only  defence  would  have  been  '  lAene  administravit' ;  and 
♦  this  defence  he  could  not,  obviously,  support,  as  long  as  assets 
remained. 

On  the  other  hand,  for  authority  to  deal  with  the  personal 
property  of  his  testator  or  intestate,  the  personal  representative 
was  obliged,  as  we  have  seen,^  to  resort  to  the  ecclesiastical 
tribunal,  which  still  retained  all  probate  and  administrative 
jurisdiction.  In  such  a  tribunal  alone  could  the  personal  rep- 
resentative be  compelled  to  account  to  the  beneficiaries  for 
his  administration ;  and  in  it  alone  lay  any  process  to  compel 
the  payment  of  a  legacy,  or  share  of  an  intestate's  estate. 

Finally,  in  the  event  of  any  creditor  or  beneficiary  requiring 
the  aid  of  any  extraordinary  help  in  securing  payment  of  his 
debt  or  legacy,  he  had  to  resort  to  an  Equity  tribunal  for  assist- 
ance. Particularly,  if  he  wished  to  enforce  payment  out  of  the 
real  estate  of  the  deceased.  According  to  Common  Law  rules, 
the  simple-contract  creditor  and  the  legatee  had  no  claim  against 
the  land  of  their  deceased  debtor;  while  the  Statute  of  Wills  of 
1540,  by  enabling  the  debtor  to  devise  the  bulk  of  his  lands,  had 
enabled  him  also  to  defeat  his  specialty  creditors,  by  devising  away 
his  land  to  strangers.^  For,  until  the  passing  of  the  Statute  of 
Fraudulent  Devises,  in  1691,^  no  action  lay  by  the  creditor 
against  the  devisee.  But,  since  the  passing  of  the  Statute  of 
Wills,  it  had  become  increasingly  common  for  testators  to  charge 
their  real  estate,  directly  or  indirectly,  with  the  payment  of 
debts  and  legacies ;  and  as  neither  the  Common  Law  nor  the 
ecclesiastical  tribunals  had  any  adequate  machinery  for  en- 
forcing such  charges,^  the  claimant  naturally  resorted  to  Chan- 

«  Re  Samson  [1906]  2  Ch.  584. 

2  Ante,  p.  62.  An  attempt  to  invoke  the  jurisdiction  of  Chancery  to  decide  as 
to  the  validity  of  a  will  seems  to  have  been  made,  with  some  success,  as  early  as 
1574  (Mayor  of  Faversham  v.  Parke,  Acta  Cancellariw,  410).  But  perhaps  this 
was  a  will  of  lands. 

'  Note  that  a  devise  to  the  heir  would  not  be  effective  for  this  purpose.  For, 
by  Common  Law  rules,  a  devise  to  an  heir  is  nugatory. 

43  W.  &  M.  c.  14. 

^  Of  course  there  was  also  the  objection,  that  ecclesiastical  courts  could  not 
touch  land.  It  is  interesting  to  note,  that  for  some  time  after  the  passing  of  the 
Statute  of  Wills  it  was  regarded  as  doubtful  whether  there  could  be  a  suit  in  the 
Church  courts  for  a  legacy  charged  on  land  (cf.  Paschall  v.  Keterich  (1557)  Dyer, 
151b,  with  an  anonymous  case  of  1567  {ibid.,  264b)). 


228     A   SHORT   HISTORY   OF   ENGLISH   LAW 

eery,  which,  with  its  elaborate  organization  of  Masters,  Clerks, 
Registrars,  and  the  like,  would  proceed  to  take  the  accounts  of  the 
deceased's  property,  and,  if  necessary,  direct  a  sale  of  his 
land,  and  payment  out  of  the  proceeds.  Thus  arose,  in  distinc- 
tion from  Legal  Assets,  or  estate  for  which  an  executor  would  have 
to  account  in  a  common  law  action  by  the  creditor,  before  he 
could  secure  a  verdict  of  phne  administravit,  a  new  category 
of  Equitable  Assets,  or  property  which  could  only  be  reached 
through  the  medium  of  a  Court  of  Equity ;  and,  even  though 
statutes  like  the  Statute  of  Frauds  occasionally  removed  items 
from  the  latter  to  the  former  category,^  sufficient  of  the  latter 
remains  to  the  present  day  to  preserve  the  distinction.  To 
these  'equitable  assets'  the  Court  of  Chancery  applied  equitable, 
not  legal  principles ;  and,  so  far  as  they  were  concerned,  the  doc- 
trines of  retainer  and  preference,  and  the  elaborate  degrees  of 
priority  of  different  classes  of  debts,  had  simply  no  existence. 

With   the    commencement   of   the    seventeenth    century,    we 

notice  a  change,  which  may  fairly  be  described  as  a  movement 

towards  unity  of  iurisdiction.     Though,  as  has  been 

Competition  .  o     ,      Vw    i.  •  i-  i  i 

for  the  pomted  out,"  the   Reformation  did  not  deprive  the 

Church  courts  of  their  testamentary  jurisdiction,  it 
had  undoubtedly  lowered  their  prestige ;  and  we  find  attempts, 
in  the  early  years  of  the  seventeenth  century,  to  bring  before 
lay  tribunals  matters  which  at  one  time  unquestionably  belonged 
to  the  Church  courts.  The  tendency  was  not  confined  to  matters 
like  defamation  and  perjury.  Thus,  in  1611,  a  plaintiff  sued  for 
a  legacy  in  the  King's  Bench  ;^  and,  though  he  was  unsuccessful, 
no  objection  was  raised  to  the  jurisdiction.  It  is  interesting  to 
note,  that  the  form  of  action  was  Assumpsit ;  on  the  (fictitious) 
promise  to  pay,  alleged  to  have  been  given  in  consideration  that 
the  plaintiff'  would  forbear  to  sue.  This  ingenious  device  was 
pushed  forward  during  the  period  of  the  Commonwealth,  when, 
of  course,  the  Church  courts  were  suspended;^  and,  after  the 
Restoration,  it  made  good  its  footing,^  though  there  was  a  serious 
objection  to  the  form  of  the  action  in  the  possible  plea  of  want  of 
consideration  for  the  alleged  promise  to  pay.     Of  course  there 

■  E.g.  by  making  trust  estates  in  foe  simple  assets  for  payment  of  debts  (29  Car. 
II  n077)  f.  ;i,  ss.  10-11). 

2  Ante,  pp.  74,  75.  '  Smith  v.  Johns,  Cro.  Jac.  257. 

*  The  critical  moment  may  be  seen  in  Tooke  v.  Fitz-John  (1657)  Hardres,  96. 

'  Nicholson  v.  Shirman  (1661)  1  Sid.  45. 


REFORM   BY   EQUITY  229 

was  no  real  consideration ;  and,  though  Lord  Mansfield,  with 
his  usual  breadth  of  view,  refused  to  allow  the  technical  objection 
to  prevail,^  Lord  Kenyon,  a  quarter  of  a  century  later,^  closed 
the  doors  of  the  Common  Law  courts  against  such  actions. 

Long  before  that  time,  however,  the  superior  machinery  of 
Chancery  had  practically  succeeded,  not  only  in  depriving  the 
ecclesiastical  courts  of  their  monopoly,  but  in  preventing  actions 
for  legacies  becoming  really  frequent  in  the  Common  Law  courts. 
Lord  Mansfield,  frankly,  though  with  regret,  in  the  case  of 
Atkins  V.  Hill,^  explains  the  position.  It  was  at  least  doubtful 
if  the  Common  Law  court  could  make  an  executor  account ; 
for  the  common  law  Writ  of  Account  only  lay,  properly  speaking, 
against  bailees,  and  the  legatee  had  not  bailed  the  goods  to  the 
executor.^  Again,  the  weapon  of  'discovery,'  or  interrogatories, 
peculiar  to  Chancery,  was  especially  valuable  in  such  cases. ^ 
Again,  by  the  use  of  injunctions,  vexatious  suits  against 
personal  representatives  could  be  stopped,  and  the  assets 
administered  properly  and  leisurely.^  It  is,  in  fact,  abundantly 
clear,  that,  by  means  of  these  and  other  attractions,  the 
Court  of  Chancery  had,  not  merely  acquired  a  share  of 
administrative  jurisdiction  before  the  end  of  the  seventeenth 
century,^  but  had,  by  the  end  of  the  eighteenth  century,  practi- 
cally secured  the  lion's  share  of  that  jurisdiction.^  Li  this  some- 
what invidious  position,  it  at  first  maintained  a  delicate  affec- 
tation of  respect  for  the  ecclesiastical  tribunals  which  it  had 
plundered ;  ^  but,  inasmuch  as  this  profession  was  accompanied 
by  the  inconsistent  practice  of  entertaining  suits  even  when  pro- 
ceedings had  already  been  commenced  in  the  Church  courts,^'' 
and,  finally,  of  actually  pronouncing  on  the  validity  of  a  will 

1  Haiokes  v.  Saunders  (1775)  Cowp.  289. 

2  Decks  V.  Strutt  (1794)  5  T.  R.  690. 

'  (1775)  Cowp.,  at  p.  288.  (The  writer  has  traced  back  the  Chancery  jurisdic- 
tion in  actions  for  legacies  to  the  year  1600  (Awbry  v.  George,  Acta  Cancellarice, 
757;  Browne  v.  Ricards,  ibid.,  761).  But  in  the  second  of  these  cases,  the  Court 
admitted  that  questions  as  to  the  validity  of  wills  were  for  the  ecclesiastical  tribunal.) 

*  This  objection  was  taken  as  early  as  1557  (Paschall  v.  Keterich,  Dyer,  151b, 
note). 

^  Morrice  v.  B.  of  England  (1736)  Ca.  temp.  Talbot,  217.  (In  this  case  the 
Chancellor  fully  admits  the  concurrent  jurisdiction  of  the  Common  Law  courts.) 

^Robinson  v.  Bell  (1690)  2  Vern.   146. 

''Noel  V.  Robinson  (1682)  1  Vern.  93;  Jenks  v.  Holford  (1682)  1  Vern.  61  (Lord 
Nottingham). 

8  Atkins  V.  Hill  (1775)  Cowp.,  at  p.  288  (Lord  Mansfield). 

9  Nicholas  V.  Nicholas   (1720)   Pre.   Cha.  546. 
"  Wright  V.  Black  (1682)    1   Vern.   106. 


230    A   SHORT  HISTORY  OF  ENGLISH  LAW 

itself,^  it  is  probable  that  the  judges  and  officials  of  the  ecclesiasti- 
cal tribunals  derived  scant  satisfaction  from  the  lip  reverence  of 
their  successful  rivals. 

So  far  as  the  new  jurisdiction  of  Chancery  involved  the  de- 
cision of  purely  testamentary  questions,  it  took  over  the  existing 
ecclesiastical  law,  which  was,  in  effect,  Roman  Law.^  The 
attitude  of  the  Court  towards  the  doctrines  of  the  Common  Law 
has  partly  appeared  from  the  account  already  given  of  the 
growth  of  the  new  jurisdiction ;  but  a  better  idea  of  it  will  be 
gained  by  a  brief  statement  of  the  four  great  and  novel  principles 
evolved  by  the  Chancellors  of  this  period  in  dealing  with  the 
administration  of  assets. 

The  doctrine  of  marshalling,  which  is  really  an  application  of 
the  great  Roman  principle  of  subrogation,  was  not  confined  in 
its  scope  to  the  assets  of  deceased  persons ;  but  it  is  in  that 
connection  that  its  chief  importance  lies.  As  we  have  said,  the 
Common  Law  recognized  different  classes  of  debts,  having  various 
priorities.     Broadly    speaking,    simple-contract    creditors   could 

, onlv  claim  to  be  paid  out  of  personaltv ;    creditors 

by  specialty  in  which  the  heirs  were  bound  could  also 
claim  to  be  paid  out  of  real  estate  descended  (and,  after  1G91, 
devised).  If  a  specialty  creditor  chose  to  sue  the  executor  and 
get  paid  out  of  personalty.  Chancery  could  not,  or  would  not, 
prevent  him ;  but  if  he  failed  to  get  payment  in  full  out  of  the 
personalty,  and  then  came  to  Chancery  for  help  in  making  the 
realty  liable,  the  Court  would  not  help  him  until  he  had  allowed 
the  simple-contract  creditors  to  take  out  of  the  land  an  amount 
equal  to  that  which  he  (the  specialty  creditor)  had  taken  out  of 
the    personalty.^     Or    again,    in    the    above    circumstances,    if, 

1  Gofss  V.  Tracy  (1715)  1  P.  Wms.  287.  It  is  true  that  this  was  a  wall  of  lands, 
with  which  the  eeclesiastical  court  could  not  concern  itself,  and  that,  for  sonic  time, 
it  was  held  that,  in  a  ease  of  pure  personalty.  Chancery  could  not  pronounce  on  the 
validity  of  the  will  (Archer  v.  Morse  (1686)  2  Vern.  8;  Kcrrich  v.  Branshy  (1727) 
7  Bro.  P.C.  4.'j7).  But,  ultimately,  under  cover  of  deciding  on  the  validity  of 
particular  provisions  in  a  will.  Chancery  acquired  the  power  of  pronouncing  on  the 
will  as  a  whole  {Marriott  v.  Marriott  (1725)  1  Stra.  666).  In  Barnsley  v.  Powel 
(1748)  1  Yes.  119,  Lord  Ilardwicke  took  the  bold  course  of  decreeing  the  executors 
under  a  will  actually  admitted  to  probate,  to  consent  to  a  revocation  of  probate  in 
the  next  term.  After  this,  it  would  have  been  idle  to  deny  the  practical  power  of 
Chancery  to  decide  on  the  validity  of  wills ;  though  Lord  Mansfield  could  still  deny 
it  in  theory  {Atkins  v.  Hill  (1775)  Cowp.,  at  p.  287). 

*  Atkins  V.  Hill,  uhi  sup.,  at  p.  287  (Lord  Mansfield). 

'  Of  course,  if  the  specialty  creditor  had  a  legal  claim  against  the  devisees  (e.g. 
after  1691),  he  could  satisfy  it  by  an  action  at  law;  and  the  Chancery  doctrine 
would  not  apply. 


REFORM  BY  EQUITY  231 

after  all  debts  paid,  there  was  a  balance  of  personalty,  this  would 
go,  not  to  the  legatees,  but  to  the  devisees  of  the  real  estate ; 
for,  in  view  of  Equity,  which  in  this  respect  agreed  with  the 
Common  Law,  the  real  estate  ought  not,  as  between  the  bene- 
ficiaries, to  have  been  resorted  to  for  payments  of  debts,  until 
the  personalty  was  exliausted.  The  former  was  a  case  of  'mar- 
shalling '  as  between  creditors ;  the  latter  a  case  as  between 
beneficiaries.  Owing  to  recent  changes  in  the  law,^  marshalling 
between  creditors  is  now  virtually  extinct ;  ^  but  marshalling  as 
between  beneficiaries  is  still  quite  common.  It  is,  therefore, 
interesting  to  note  that  this  doctrine,  though  foreshadowed  in  a 
case  of  1664,  decided  by  Lord  Clarendon,^  is  virtually  the  creature 
of  Lord  Nottingham.^  It  is  obvious  that  it  involves  an  elaborate 
foundation  of  rules  as  to  the  'order  of  resort,'  i.e.  of  the  order  in 
which,  apart  from  any  intention  of  the  deceased,  the  different 
classes  of  his  assets  shall  be  made  available  for  payment  of 
debts,  or,  which  amounts  to  the  same  thing,  the  order  of  priority 
in  which  the  different  classes  of  beneficiaries  may  claim.  These 
rules  were  also  the  work,  mainly,  of  the  Chancellors  of  this 
period ;  but  to  go  into  details  would  make  this  chapter  too  long. 
Briefiy,  they  depend  on  three  principles  —  (a)  that  personalty  is 
the  primary  fund  for  payment  of  debts,  (b)  that  the  devisee  or 
legatee  of  a  specific  thing  is  preferred  {quoad  that  thing)  to  a 
general  legatee,  (c)  that  any  express  beneficiary  is  preferred  to 
the  heir  or  next-of-kin,  who  only  take  in  default  of  disposition. 

The  second  of  the  peculiar  doctrines  of  Equity  evolved  in 
connection  with  the  administration  of  assets  in  this  period,  is 
the  doctrine  of  conversion,  which  must,  of  course,  be  carefully 
distinguished  from  the  Common  Law  tort  of  that  name.^  By 
the  equitable  doctrine  of  Conversion,  land  directed 
by  its  owner  to  be  sold,  i.e.  directed  in  a  binding 
settlement  which  duly  takes  effect,  will  be  regarded  as  personalty, 
not  as  realty,  from  the  delivery  of  the  settlement ;  whilst, 
on  the  other  hand,  money  or  other  personalty  directed  to  be 
invested  in  the  purchase  of  freehold  or  copyhold  lands,  will  be 
regarded  as  real  estate  from  the  date  of  the  direction.     To  the 

1  E.g.  Administration  of  Estates  Act,  1869. 
^  I.e.  in  administration  of  assets.     It  can  easily  arise  inter  vivos. 
'  Armitage  v.  Metcalf,  1  Ch.  Ca.  74. 

^  Anon.  (1679)  2  Ch.  Ca.  4.     The  leading  case  is  Clifton  v.  Burt  (1720)  1  P.  Wms. 
679.  5  ^J^te,  p.  142. 


232    A   SHORT  HISTORY   OF   ENGLISH  LAW 

layman,  the  doctrine  appears  to  be  highly  artificial  and  academic. 
Its  practical  result,  in  the  cases  puti  is  to  cause  the  property  to 
pass  under  the  will  (or  intestacy,  as  the  case  may  be)  of  the 
beneficiary  for  whom  it  is  destined,  as  personalty,  or  as  realty, 
whether  the  direction  of  the  settlor  has  actually  been  carried  out, 
or  not.  Obviously,  so  long  as  the  distinction  between  realty  and 
personalty  is  recognized  by  English  law,  it  is  of  great  importance 
to  know  into  which  category  a  particular  fund  falls  ;  and  it  would 
hardly  be  fair,  that  the  beneficial  destination  of  a  fund  should 
depend  upon  whether  third  parties,  usually  trustees,  had  or  had 
not  promptly  carried  out  the  settlor's  directions.  It  was,  un- 
doubtedly, this  last  consideration  which  led  Lords  Harcourt  and 
Cowper,  in  the  leading  case  of  Lingen  v.  Savray,  in  1711,^  to 
accept  the  doctrine,  which  had  previously  been  hinted  at  by 
Lord  Guilford^  and  Lord  Jeffreys.^  But  it  must  be  confessed  that 
a  somewhat  doubtful  qualification  was  added  by  Lord  Thurlow 
in  the  famous  case  of  Ackroyd  v.  Srnithson,  in  1780,^  when  the 
Chancellor  decreed  that  conversion  directed  by  a  will  was  '  for 
the  purposes  of  the  will  only.'  In  that  case  John  Scott,  after- 
wards Lord  Eldon,  acquired  fame  by  persuading  the  Court  that, 
notwithstanding  a  direction  in  a  will  to  sell  the  whole  of  the 
testator's  real  estate,  and  notwithstanding  an  actual  realization, 
any  surplus  remaining  after  the  performance  of  the  purposes  for 
which  realization  was  directed,  would  go,  not  to  the  residuary 
legatees  or  next-of-kin,  but  to  the  residuary  devisee  or  heir. 

The  third  of  the  special  equitable  doctrines  we  are  now  con- 
sidering is  that  known  as  satisfaction  or  performance.  It  pro- 
ceeds on  the  assumption,  that  if  a  man  has  entered  into  an  obli- 
gation to  perform  a  certain  act,  or,  in  one  case,  has  expressed 
an  intention  to  confer  a  benefit,  any  subsequent  benefit  conferred 
by  him  on  the  obligee  or  intended  beneficiary,  which  substan- 
g   .  .  tially,  though  not  technically,  fulfils  the  obligation, 

or  may  be  regarded  as  an  execution  of  the  intended 
benefit,  will  have  that  effect.  But  there  is,  of  course,  this  differ- 
ence between  the  two  cases.  If  a  man  enters  into  a  legal  ob- 
ligation, the  obligee  or  creditor  is  entitled  to  say  that  he  will 
take  nothing  less  than  literal  performance.  Therefore,  in  such 
a  case,  all  that  Equity  can  do,  is  to  prevent  him  claiming  the 

1  1  P.  Wms.  172.  2  Keltlehy  v.  Atwood  (1684)  1  Vern.  298. 

^  Knights  v.  Alkyns  (1686)  2  Vern.  20.  "  1  Bro.  C.C.  503. 


REFORM  BY   EQUITY  233 

substitute  as  well,  if  he  insists  on  his  legal  right  to  exact  fulfil- 
ment. Where  the  intended  benefit  is  a  pure  gift,  which,  being 
executory,  can  be  revoked,  e.g.  a  legacy,  the  latter  provision 
will,  if  considered  by  the  Court  to  be  intended  as  a  substitute, 
actually  'adeem,'  or  take  away,  the  first. 

It  is  in  connection  with  legacies  that  we  trace  the  begin- 
nings of  the  doctrine  of  satisfaction  at  the  commencement  of 
the  eighteenth  century.  In  the  case  of  Heme  v.  Heme,  decided 
in  1706  by  Lord  Cowper,  a  husband  had,  in  his  marriage  articles, 
agreed  that  his  wife  should,  at  his  death,  over  and  above  her 
'widow's  third,'  have  a  legacy  of  £800  and  certain  furniture  and 
jewels,  and  that  such  provision  should  not  debar  her  from  any- 
thing which  he  should  give  her  '  by  will  or  writing.'  The  husband 
died,  having  bequeathed  his  wife  a  legacy  of  £1000 ;  which  she 
claimed  in  addition  to  the  £S00.  But  the  Court  held,  that  the 
legacy  was  a  '  satisfaction '  of  the  articles ;  and  compelled  the 
widow  to  choose  between  them.  Similar  cases,  of  ordinary 
debts  satisfied  by  legacies,  appear  immediately  in  the  books ;  ^ 
and  though  there  is,  in  some  directions,  an  apparent  reluctance 
to  accept  the  rule,  yet,  after  the  decision  by  Lord  Talbot,  in 
1735,  of  the  leading  case  of  Lechmere  v.  Lechmere,'^  in  which  the 
property  agreed  to  be  settled  was  merely  left  to  descend  to  an 
heir  of  the  beneficiary,  there  could  be  no  question  as  to  its 
orthodoxy.  It  is,  however,  an  important  qualification  to  bear 
in  mind,  that  it  is  much  easier  to  raise  a  case  of  satisfaction 
against  a  person  in  loco  filii  to  the  person  from  whom  the  benefit 
proceeds,  than  against  a  stranger.  For  Equity  '  leans  against 
double  portions  ' ;  though  it  will  only  allow  the  other  persons 
in  loco  filiomm  to  object  to  them. 

The  fourth  and  last  of  the  great  doctrines  of  Equity  on  the 
subject  of  the  administration  of  assets  is  the  doctrine  of  election. 
It  grows  naturally  out  of  the  doctrine  of  satisfaction ;  and  is, 
indeed,  foreshadowed  in  the  early  case  of  Heme  v.  Heme,  before 
alluded  to.^  As  was  said  above.  Equity  has  no  power,  as  a 
general  rule,  to  compel  a  man  to  forego  a  legal  right ;  it  can  only 
refuse  to  help  him  if  he  claims  the  equitable  substitute  for  it. 

^E.g.  Talbot  v.  D.  of  Shrewsbury  (1714)  Pre.  Cha.  394  (Lord  Harcourt); 
Chanceys  Case  (1717)  1  P.  Wms.  408. 

2  Ca.  temp.  Talb.  80. 

'  (1706)  2  Vern.,  at  p.  556.  '  If  she  will  take  the  benefit  of  the  will,  she  must 
suffer  the  will  to  be  performed  throughout.' 


234    A  SHORT  HISTORY  OF  ENGLISH  LAW 

In  other  words,  he  is  entitled  to  choose  whether  he  will  abide  by 
his  legal  right,  or  take  the  benefit  offered  in  exchange. 
The  same  principle  governs  the  later  and  more  familiar 
application  of  the  doctrine  of  'election.'  If  a  settlor  pro- 
fesses to  give  A's  property  to  B,  and  to  give  some  of  his  own  (the 
settlor's)  property  to  A,  A  can,  of  course,  refuse  to  part  with  his 
property  to  B.  But,  on  the  other  hand,  if  he  refuses  to  carry  out 
the  settlor's  intention  with  regard  to  B,  at  least  to  the  extent  of 
compensating  him  out  of  his  own  (A's)  property,  he  cannot  claim 
the  benefit  proffered  by  the  settlor.  He  cannot  'approbate  and 
reprobate';  he  must  'elect  for  or  against  the  settlement.'  As 
has  been  said,  the  first  application  of  the  doctrine  is  clearly  fore- 
shadowed in  Heme  v.  Herne;^  the  second  is  explicitly  adopted 
in  another  case  of  the  same  year,  viz.  Noys  v.  Mordaunt.^  In 
the  last  case.  Lord  Cowper  seems  to  restrict  the  doctrine  to  the 
case  of  rivalries  between  brothers  and  sisters ;  and  there  can 
be  little  doubt  that  the  Roman  doctrine  of  collatio  bonorum 
(known  in  the  vernacular  as  'hotchpot')  had  a  good  deal  to  do 
with  originating  the  doctrines  of  Satisfaction  and  Perform- 
ance. But  in  the  slightly  later  case  of  Streatfield  v.  Streatfield, 
decided  in  1735,^  Lord  Talbot  stated  the  principle  in  perfectly 
general  terms ;  and  it  is  now  generally  admitted  to  apply  in  all 
cases. 

It  is  not,  of  course,  pretended  for  a  moment,  that  the  whole  of 
the  work  of  judicial  reform,  in  the  century  following  the  Restora- 
^  ^  tion,  was  effected  bv  the  Court  of  Chancerv.    That  the 

Other  .  '  . 

Sources  of      largest  share  is  to  the  credit  of  the  Chancellors  and 
*""'  ^  Master   of   the    Rolls,  can    hardly  be    denied ;    and 

therefore  the  bulk  of  this  chapter  has  been  devoted  to  their 
achievements.  But,  as  is  well  known,  the  jurisdiction  by  '  English 
Bill '  was  exercised  by  the  Court  of  Exchequer  from  early  times 
until  1841 ;  and,  in  the  hands  of  men  like  Sir  Matthew  Hale, 
the  Atkins',  Eyre,  and  Gilbert,  that  jurisdiction  was  not  likely 
to  be  unproductive. 

Nor  should  the  splendid  services  of  Lord  Mansfield,  in  a 
slightly  later  period,  be  forgotten.  Not  only  did  he  and  Lord 
Camden  vigorously  uphold  the  liberty  of  the  subject  in  days 

1  (1706)  2  Vern.  555.  2  (1706)  ibid.,  581. 

3  Ca.  temp.  Taib.  176. 


REFORM   BY  EQUITY  235 

when  that  libert}"  was  only  too  likely  to  suffer ;  ^  but  he  widened 
the  jurisdiction  of  the  King's  Courts  by  adopting  the  principles 
of  the  Law  Merchant  into  the  Common  Law,  and  thus  rendering 
it  suitable  to  deal  with  the  great  commercial  expansion  which  was 
taking  place.  Finally,  by  his  well-known  decision  in  Moses  v. 
Macferlan,"  delivered  when  he  had  been  onh'  four  years  upon  the 
Bench,  Lord  Mansfield  laid  down  the  great  and  truly  equitable 
principle  which  is  the  parent  of  the  whole  modern  doctrine  of 
Quasi-contract:  that  where  the  defendant  is  'obliged  by  the 
ties  of  natural  justice  and  equity,'  ^  to  pay  or  repay  money,  no 
technical  objections  as  to  the  form  of  action,  or  the  absence  of 
consideration,  will  be  allowed  to  defeat  the  plaintiff's  claim.  But 
if  this  chapter  has  not  succeeded  in  proving  the  thesis  with  which 
it  started :  that  to  judicial  reform  was  due  whatever  of  legal 
progress  there  was  in  the  century  following  the  Restoration, 
it  is  already  too  long,  and  must  now  close. 

Only,  in  conclusion,  the  reader  can  hardly  spare  a  regret,  that 
this  beneficent  process  of  adjusting  the  law  to  the  development 
of  social  needs,  should  have  come  to  an  abrupt  termination  in  the 
last  quarter  of  the  eighteenth  century.  But,  with  Lord  Eldon 
on  the  woolsack  and  Lord  Kenyon  on  the  King's  Bench,  the 
channels  of  Equity  became  choked  with  the  stones  of  precedent 
and  the  weeds  of  form ;  and  the  fountains  of  justice  ran  slowly 
and  painfully,  till  the  sweeping  hand  of  Parliamentary  Reform 
released  the  flow  again.  Lest  it  should  be  said  that  this  criticism 
is  vague  and  unfounded,  the  writer  may  be  permitted  to  mention 
two  obvious  and  gross  evils,  which  the  legislature  could  hardly 
have  been  expected  to  anticipate,  but  which  a  free  application  of 
judicial  discretion  might  have  nipped  in  the  bud.  One  is  the 
evil  of  'tied'  public-houses,  under  which  brewers,  publicans, 
and  the  public  alike  groan,  but  which  could  have  been  stopped 
at  once  by  a  liberal  interpretation  of  the  established  principle  of 
'restraint  of  trade,'  exercised  by  the  Court  of  Chancery  in  its 
mortgage  jurisdiction.  Had  the  Courts  boldly  declared,  that 
the  liquor  license  was  a  monopoly  supposed  to  be  conferred  for 
the  public  good,  and,  therefore,  not  capable  of  being  restricted 
by    private   contract,    the   'tied    house'    system    could-   never 

^Wilkes  V.  Wood  (1763)  19  St.  Tr.  1153;  Entick  v.  Carrington  (1765)  ibid.,  1030; 
Leach  v.  Money  (1765)  ibid.,  1001. 

^  (1760)  2  Burr.  1005.  3/Wd.,at  p.  1030. 


236    A   SHORT   HISTORY   OF   ENGLISH   LAW 

have  come  into  existence.  The  second  example  is  that  of 
the  company  promoter  or  director,  who  shields  himself  from 
liability  towards  his  real  beneficiaries,  the  shareholders,  behind 
the  artificial  protection  of  that  purely  legal  entity,^  the  company. 
With  a  reasonable  application  of  equitable  principles,  the 
monstrous  doctrine :  that  '  the  directors  of  a  company  are  not 
trustees  for  individual  shareholders,'  would  never  have  been 
adopted ;  and  directors  who  are  secretly  negotiating  a  profitable 
sale  of  their  company's  assets  would  not  be  allowed  to  go  about 
buying  up  shares  with  a  view  to  profiting  at  the  expense  of  their 
own  shareholders.^  The  Court  which  decided  Keech  v.  Sa7idford 
would  have  made  short  work  of  a  claim  such  as  that. 

1  The  writer  has  no  wish  to  fall  foul  of  recent  theories  on  the  nature  of  a  corpora- 
tion. Whatever  may  be  the  position  as  regards  the  outside  world,  it  is  tolerably 
clear  that,  as  regards  its  own  members,  a  corporation  is  a  very  artificial  conception. 

^Percival  v.  Wright  [1902]  2  Ch.  421. 


CHAPTER   XV 

CHANGES  IN  LAND  LAW 

THE  structure  of  English  land  law  has  been  compared  in 
these  pages  ^  with  a  medieval  building,  of  which  the 
original  idea  has  been  transformed,  and  to  which  additions 
have,  from  time  to  time,  been  made,  with  a  view  of  adapting 
it  to  modern  requirements,  but  which,  in  spite  of  all,  retains  its 
medieval  outlines  and  many  of  its  medieval  features.  The  Civil 
War,  as  has  been  hinted,  made  a  severe  breach  in  the  medieval 
scheme ;  and,  indeed,  it  may  be  said  to  have  destroyed,  not 
merely  a  wing,  but  the  very  centre  and  omphalos  of  the  ancient 
fabric,  the  nucleus  from  which  all  the  rest  has  sprung.  So  that 
the  modern  student  of  English  land  law  has  to  begin  by  grasping 
a  medieval  principle,  which  (he  is  told)  is  the  basis  of  the  present 
scheme ;  only  to  learn,  somewhat  later,  that  the  principle  itself 
has  ceased  to  have  much  practical  application.  Is  it  surprising 
that  modern  English  land  law  should  resemble  a  chaos  rather 
than  a  system  ? 

The  breach  effected  by  the  Civil  War  is,  of  course,  embodied 
in  the  Act  for  the  Abolition  of  Military  Tenures,  ^  passed  by  the 
Abolition  first  Restoration  Parliament  in  its  first  session. 
Tenures  But,  equally  of  course,  that  statute,  though  it  formally 
embodied  the  change  effected,  did  not  of  itself  effect  the  change. 
The  military  system  intended  to  be  maintained  by  knight-service 
tenure  had  long  passed  away ;  the  mailed  knight,  with  his 
esquires  or  men-at-arms,  had  disappeared  before  the  battles  of 
Crecy  and  Agincourt,  and,  with  him,  the  last  real  justification  of 
military  tenure.  Since  his  disappearance,  that  tenure  had  been 
used  mainly  as  an  engine  of  oppressive  taxation  by  the  Crown. 
The  Court  of  Augmentations,^  and  the  Court  of  Wards  and 

^Ante,  p.  83.  =  12  Car.  II.  (1660)  c.  24. 

^Set  up  by  27  Hen.  VIII  (1535)  cc.  27  and  28;  re-instituted  by  7  Edw.  VI 
(1553)  c.  2;  abolished  by  1  Mary,  st.  II  (1553)  c.  10. 


238    A   SHORT  HISTORY  OF  ENGLISH  LAW 

Liveries,  ^  had  been  set  up  by  the  Tudor  monarchs  to  keep  the 
system  alive  for  financial  purposes.  So  searching  was  their 
machinery,  that  the  great  bulk  of  the  landed  gentry,  who,  owing 
to  the  operation  of  Quia  Emptores,^  had  ceased  to  share  in  the 
plunder  of  infant  heirs,  endeavoured,  on  the  accession  of  the 
Stuarts,  to  buy  up  the  Crown's  rights.  But  the  Great  Con- 
tract of  1610  had  failed,  because  of  the  greed  of  James;  and 
James'  son,  in  his  desperate  attempt  to  govern  without  a  Parlia- 
ment, had  revived  the  oppressions  of  the  Tudor  monarchs. 

It  is  not,  therefore,  surprising  to  find  that,  during  the  Civil 
War,  in  February  1646,  the  two  Houses  had  passed  a  sweeping 
Ordinance^  abolishing  the  oppressive  feudal  incidents,  and  even 
the  military  tenures  themselves,  or  that  this  Ordinance  was  con- 
firmed and  enlarged  by  a  second  Ordinance  of  the  Protector 
and  his  Parliament,  in  the  autumn  of  1656.^  Although  the  valid- 
ity of  these  Ordinances  could  not  be  admitted  by  a  Restoration 
Parliament  which  dated  the  accession  of  Charles  II  from  the 
execution  of  his  father,  there  was  not  the  least  desire,  even  on 
the  part  of  the  enthusiastic  royalists  of  the  Restoration,  to  re- 
vive the  feudal  claims  of  the  Crown  ;  and,  as  has  been  said,  one 
of  their  first  works  was  to  pass  the  statute  of  1660.'^  The  wording 
of  that  enactment  is  peculiar ;  but  its  meaning  is  tolerably  clear. 
Not  only  are  all  military  tenures  swept  away,  and  the  estates 
held  by  them  converted  into  estates  held  by  '  free  and  common 
socage ' ;  ^  but  even  the  distinctively  feudal  incidents  of  the 
last-named  tenure  (e.g.  '  aids ')  are  abolished,  as  well  as  the  peculiar 
features,  e.g.  fines  for  license  to  alienate'^  and  payments  for  'ous- 
terlemain,'  which  still  distinguished  estates  held  direct  from  the 
Crown,  or  in  capite,  from  estates  held  of  mesne  lords,^  and  the 
other  prerogative  claims  of  'purveyance'  and  'pre-emption.'^ 
On  the  other  hand,  the  purely  financial  items  of  rents,  heriots, 
and  reliefs,  are  expressly  saved ;  ^"  as  are  also  the  non-military 
tenures  of  frankalmoign  and  copyhold. ^^  Finally,  with  charac- 
teristic Stuart  notions  of  justice,  the  loss  to  the  Crown  entailed 

'  S-t  up  by  32  Hen.  VIII.  (1540)  c.46;  abolished  by  12  Car.  II  (1660)  c.  24,  s.  3. 

2  18  Edw.  I.  (1290)  c.  1.     See  ante,  pp.  102,  103. 

'  Acts  and  Ordinances  of  the  Commonwealth,  I,  833. 

Ubid.,  II.,  1043.  6  12  Car.  II  (1660)  c.  24.  « Ss.  1,2. 

'  For  the  nature  of  these  liabilities,  see  ante,  p.  103. 

8  12  Car.  II  (1660)  c.  24,  ss.  1,  4.  Ubid.,  ss.  12-14.  ^°  Ibid.,  6.  6. 

>'  12  Car.  II  (1660)  c.  24,  s.  7. 


CHANGES  IN  LAND  LAW  239 

by  this  statute  was  compensated  for  by  an  hereditary  annual 
payment,  or  excise,  on  beer,  ale,  spirits,  and  other  strong  liquors, 
as  well  as  on  coffee,  chocolate,  sherbet,  and  tea.^  In  other  words, 
the  royalist  landowners  of  the  Restoration  Parliament  gaily 
lifted  the  burden  from  their  own  shoulders,  and  laid  it  on  those 
of  the  general  public.  This  part  of  the  measure  was  entirely 
their  own ;  but  the  origin  of  the  reforming  part  of  the  statute  is 
placed  beyond  doubt  by  the  fact,  that  the  statute  is  expressly 
made  ^  to  operate  retrospectively  from  24th  February,  1646,  the 
day  of  the  passing  of  the  Ordinance  of  the  Long  Parliament. 

Closely  following  upon  the  Act  for  the  Abolition  of  Military 
Tenures,  came  the  Statute  of  Frauds,^  which,  though  it  was  not 
The  statute  entirely  concerned  with  land  law,  contained,  as  is 
of  Frauds  ^yg}|  known,  several  provisions  relating  to  that  subject. 
As  has  already  been  pointed  out,^  it  imposed  the  requirement 
of  writing  on  the  creation  of  trusts  of  lands,  and  the  assignment 
of  all  trusts,  and  made  a  trust  estate  in  fee  simple  assets  for  pay- 
ment of  its  owner's  debts,  both  in  his  lifetime  and  after  his  de- 
cease. But,  in  addition  to  these  provisions,  the  statute  dealt  a 
further  blow  at  the  principles  of  medieval  conveyancing,  by 
requiring  ^  the  ceremony'  of  writing  for  the  creation  and  transfer 
of  all  legal  estates  (including  estates  for  years)  save  the  smallest, 
and,  in  the  case  of  devises,  the  additional  ceremony  of  the  pres- 
ence of  three  witnesses.  INIoreover,  it  must  be  observed,  those 
requirements,  unlike  those  affecting  contracts  in  the  same  stat- 
ute, which  will  be  hereafter  referred  to,*"  were  not  evidentiary 
only,  but  essential ;  i.e.  the  statute  declared  that,  in  their  absence, 
nothing  should  pass  but,  at  the  most,  a  mere  estate  at  will. 
Further,  the  statute  dealt  ^  with  the  tricky  '  estate  i^ur  autre  vie  ' 
{i.e.  an  estate  held  for  the  life  of  a  person  other  than  the  tenant) 
by  making  it  liable  for  the  payment  of  its  owner's  debts,  and, 
subject  thereto,  giving  him  liberty  to  dispose  of  it  by  his  will. 

From  the  passing  of  the  Statute  of  Frauds,  in  1677,  to  the 
assembling  of  the  first  Reformed  Parliament  in  1832,  we  have, 
as  has  been  previously  pointed  out,^  hardly  a  single  statute  of  first- 
class  importance  dealing  with  land  law.  If  we  except  such  minor 
enactments  as  the  Cestui  Que  Vie  Acts,^  the  Landlord  and  Tenant 

^lUd.,  ss.  15-27.  '^Ibid.,  s.  1  (5).  ^  29  Car.  II  (1677)  c.  3. 

*  Ante,  p.  221.  ^  gg    i_^   5  6  p^^i^  pp_  298,  299.  "  S.  12. 

^Ante,  pp.  207,  208.     «  18  &  19  Car.  II  (1667)  c.  6;  6  Anne  (1707)  c.  18  (or  72). 


240    A   SHORT  HISTORY  OF  ENGLISH  LAW 

Acts/  and  the  Statute  of  Fraudulent  Devises,^  the  legislative 
history  of  the  period  is  almost  a  blank ;  for  the  development  of 
land  law  in  that  period,  we  must  look  to  the  work  of  the  Courts 
of  Equity,  of  which  the  last  chapter  endeavoured  to  give  some 
account.  But  with  the  passing  of  the  Reform  Act,  the  flood-gates 
were  opened ;  and  the  rush  of  waters  which  followed  renders  it 
necessary,  in  order  to  make  the  picture  clear,  to  abandon  the 
purely  chronological  for  a  partially  analytical  method.  What 
have  been  the  achievements  of  the  nineteenth  century  and  its 
successor  in  the  reform  of  land  law  ? 

First  we  may  note  the  complete  realization  of  a  tendency 

which  had  long  been  manifest,  and  which  had,  in  substance, 

successfullv    established    itself    by  the    close  of  the 

Complete  '■  i         t        i  i  i    •       i  •?     i 

Freedom  of    preceding    period.      It     has     been    explained  "*    how 

freedom  of  alienation,  especially  of  alienation  of 
land,  is  abhorrent  to  early  stages  of  law ;  while  as  the  social 
organism  casts  its  patriarchal  and  military  sloughs,  and 
emerges  into  the  commercial  stage  of  development,  im- 
patience of  all  restraints  on  alienation  manifests  itself,  and, 
ultimately,  achieves  the  victory. 

Incidentally,  the  Act  of  1660,  which  abolished  Military  Tenures,* 
gave  an  impetus  in  this  direction;  for,  the  Statute  of  Wills  in 
1540,^  which  introduced  freedom  of  testation,  so  far  as  land  was 
concerned,  expressly  restricted  that  freedom  as  two  thirds  of  the 
landowner's  knight-service  estates.  The  abolition  of  knight- 
service  tenure,  then,  completed  the  work  of  the  statute  of  1540. 
But  there  had  always  been  considerable  doubt  whether  that 
statute  applied  to  copyholds  ;  or,  rather,  according  to  the  doctrine 
of  Hey  don's  Case,''  it  was  assumed  that  the  statute,  which  clearly 
derogated  from  the  rights  of  lords,  but  did  not  expressly  mention 
copyholds,  did  not  apply  to  the  latter  tenure.  It  is  true,  that, 
by  the  somewhat  clumsy  machinery  of  a  '  surrender  to  the  use 
of  the  will,'  a  custom  to  devise  established  itself,  doubtless  in 
imitation  of  the  statute,  in  many  manors ;  '  but  when  the  necessity 

M  Geo.  II  (1730)  c.  28;    11  Geo.  II  (1737)  c.  19. 

2  3  &  4  W.  &  M.  (1691)  c.  14. 

3  Ante.  pp.  36-38.  ^  12  Car.   II,  c.  24. 
532  Hen.  VIII,  c.  1.  ^  (1584)  3  Rep.   18. 

'  There  is  also  some  trace,  during  that  period,  of  Courts  of  Equity  allowing  the 
equitable  fee  simple  of  a  copyhold  to  be  devised,  even  when  the  custom  did  not 
authorize  a  surrender  of  the  legal  estate  to  the  use  of  the  tenant's  will  (Smith  v. 
Baker  (1737)  1  Atk.  385). 


CHANGES   IN  LAND  LAW  241 

for  this  device  was  abolished  in  1815,^  the  statute  aboHshing 
it  was  careful  to  except  all  cases  in  which  copyhold  tenements 
were  not  devisable  at  all  by  custom.  The  Wills  Act  of  1837, 
however,  completely  swept  away  an}^  doubts  existing  on  the 
subject,  and  made  all  copyhold  interests  of  a  heritable  nature 
devisable ;  while  at  the  same  time  it  authorized  the  devise  of  all 
contingent,  executory,  and  future  interests  in  land,  about  which 
there  had  also  been  some  uncertainty.^  In  fact,  so  sweeping  are 
the  words  of  the  Act,  that  a  literal  acceptance  of  them  would  even 
bestow  the  power  of  devise  on  a  tenant  in  tail ;  ^  but  it  is  unques- 
tioned law,  that  an  estate  tail  cannot  be  affected,  though  one 
can  be  created,  by  devise. 

There  remains,  in  truth,  only  one  interest  in  land,  as  to  the 
transferability  of  which  there  can  be  any  real  doubt.  This  is 
Hights  of  the  possibility  or  chance  of  recovering  an  estate 
or  eiture  owing  to  the  breach  of  a  condition  by  the  tenant.  The 
Common  Law  disliked  all  traffic  in  such  contingencies,  fearing 
lest  it  should  provoke  '  maintenance,'  or  stirring-up  of  strife. 
So  the  benefit  of  conditions  w^as,  at  common  law,  inalien- 
able by  act  of  the  parties.^  At  the  time  of  the  Reformation, 
this  restriction  was  broken  down,  so  far  as  conditions  in  leases 
only  were  concerned,  by  the  statute  ^  which  permitted  the 
benefit  of  them  to  be  assigned  with  the  land  or  the  reversion. 
The  rule,  however,  still  applied  to  conveyances  of  the  inheritance, 
and  to  conditions  of  forfeiture  of  the  inheritance.  But  the  Wills 
Act  of  1837  expressly  extends^  the  power  of  devise  to  'all  rights  of 
entry  for  condition  broken  ' ;  and  the  Real  Property  Act,  1845,^ 
contains  a  similar  or  even  more  sweeping  provision  ^  with  regard 
to  alienation  by  deed.  Nevertheless,  in  spite  of  the  express  words 
of  these  statutes,  it  seems  to  be  the  better  opinion,  that  a  right  of 
forfeiture  arising  from  the  actual  breach  of  a  condition  is  not 

^  55  Geo.  Ill,  c.  192,  s.  3.  (Before  this  time,  however,  some  of  the  more  pro- 
gressive judges  had  suggested  that  a  custom  which  made  copyholds  not  devisable 
would  be  bad,  as  'unreasonable.') 

'  Wills  Act,  1837,  s.  3. 

^  'All  real  estate  .  .  .  which,  if  not  so  devised,  .  .  .  would  devolve  upon  the 
heir  at  law  or  customary  heir'  (of  the  testator  or  his  ancestor). 

*  I.e.  by  act  in  pais.  In  all  probability,  such  rights  could  pass  by  Fine,  with  the 
approval  of  the  Court.  In  the  case  of  land,  dealing  in  such  rights  was  expressly  for- 
bidden by  statute  (32  Hen.  VIII  (1540)  c.  9),  which  has  only  recently  been  repealed 
(Land  Transfer  Act,  1897,  s.  11). 

5  32  Hen.  VIII  (1540)  c.  28.  «  S.  3,  ad  fin-  ^  8  &  9  Vict.  c.  106  s.  6. 

*  'A  right  of  entry,  whether  immediate  or  future,  and  whether  vested  or  con- 
tingent.' 


242    A   SHORT  HISTORY  OF  ENGLISH  LAW 

transferable.^  And  a  mere  syes  successionis  is  not  assignable  at 
law ;  though  an  assignment  of  it  may  be  enforced  in  Equity,  if 
made  for  valuable  consideration.^  But  the  power  of  assigning 
the  benefit  of  future  breaches  of  conditions  in  a  lease  has  been 
rendered  yet  more  effectual  by  the  Law  of  Property  Amendment 
Act,  1859,^  which  allows  '  severance '  of  a  condition  of  re-entry 
on  non-payment  of  rent,  and  by  the  Conveyancing  Act,  ISSl,'* 
which  allows  severance  of  all  conditions  in  leases,  made  for  the 
benefit  of  the  lessor. 

The  relief  against  forfeitures  incurred  by  breach  of  condition 
is,  perhaps,  only  indirectly  concerned  with  freedom  of  alienation  ; 
Relief  and  yet  the  possibility  of  obtaining  such  relief  cer- 

Forfefture  taiuly  tends  to  make  property  more  freely  alienable, 
of  Leases  Accordingly  it  may  be  noted,  that  Equity  had  quite 
early,  as  a  branch  of  its  doctrine  of  relief  against  penalties, 
assumed  the  practice  of  restraining  landlords  from  ejecting  their 
tenants  for  breach  of  conditions  in  their  leases,  when  such  breaches 
had  merely  consisted  in  failure  to  make  punctual  payments  of 
money,  e.g.  rent,  and  had  not  inflicted  irreparable  injury  on  the 
landlord.  In  such  cases.  Equity  would  decree  restitution  to 
the  tenant  on  payment  of  arrears  and  interest.  To  such  an  ex- 
tent had  this  practice  been  carried,  that,  in  the  Landlord  and 
Tenant  Act  of  1730,^  the  power  of  Equity  to  relieve,  in  such  cases, 
was  restricted  to  a  period  of  six  months  after  the  landlord  had 
recovered  the  premises  in  ejectment ;  and  this  provision,  being 
incorporated  into  the  Common  Law  Procedure  Act  of  1852,^ 
is  the  basis  of  the  law  on  the  subject  of  relief  against  non-pay- 
ment of  rent  at  the  present  day.  The  Law  of  Property  Amend- 
ment Act  of  1859^  allowed  a  Court  of  Equity  to  relieve  once 
against  failure  to  insure ;  provided  that  no  injury  by  fire  had 
actually  happened.  But  by  far  the  most  sweeping  change  was 
effected  by  the  Conveyancing  Act,  1881,^  which,  as  amended  by 

1  Hunt  V.  Bishop  (1853)  8  Exch.,  at  p.  680  per  Pollock,  C.  B. ;  Cohen  v.  Tannar 
[1900]  2  Ch.  009.  The  Conveyancing  Act,  1911,  s.  2,  has  made  an  alteration  as 
regards  conditions  in  leases. 

'^  Re  Ellenhorough  [1903]   1   Ch.  699. 

'  22  &  23  Vict.  c.  35,  s.  3.  (By  'severance'  is  meant  the  dividing  of  the  reversion 
between  two  or  more  owners.  At  the  Common  Law,  the  benefit  of  conditions  was 
indivisible  by  act  of  the  parties.) 

^  Ss.  10-12.  It  will  be  observed  that  the  Act  says  nothing  about  severance  of 
conditions  for  the  benefit  of  the  lessee. 

'  4  Geo.  II,  c.  28,  s.  2.  ?  22  &  23  Vict.  c.  35,  ss.  4-9. 

«  15  &  16  Vict.  c.  76,  s.  210.  «  44  &  45  Vict.  c.  41,  s.  14. 


CHANGES  IN  LAND  LAW  243 

the  Act  of  1892/  substantially  allows  relief  to  be  given  against 
breach  of  any  condition  in  a  lease  (except  one  against  alienation) 
in  the  case  of  the  lessee  himself,  and  in  all  cases  of  an  under- 
lessee  who  has  been  reasonably  diligent.  Moreover,  the  Act  of 
1881^  forbids  an  action  of  ejectment  for  breach  of  a  lessee's 
condition  even  to  be  commenced  before  the  service  of  a  notice, 
giving  particulars  of  the  breach  complained  of,  and  allowing 
opportunity  for  reparation. 

It  had,  however,  early  been  observed,  that  the  full  benefits 
of  free  alienation  of  land  could  not  be  obtained ;  unless,  in 
Limited  some  cases  at  least,  a  landowner  were  able  to  alienate, 
Owners  j^^^  merely  his  own  interest,  but  those  of  other  persons. 
At  first  this  may  sound  to  be  a  somewhat  revolutionary  doctrine  ; 
but  the  apparent  injustice  of  it  disappears  when  it  is  understood, 
that  all  such  suggestions  imply  the  fundamental  condition,  that 
in  any  such  disposition,  a  'limited  owner,'  i.e.  an  owner  of 
anything  less  than  the  interest  sought  to  be  disposed  of,  must  act 
honestly  for  the  benefit  of  all  parties  concerned  in  that  interest. 
The  matter  then  becomes,  simply,  one  of  safeguards. 

The  first  step  taken  in  the  direction  of  entrusting  powers  of 
disposition  to  limited  owners  was  by  a  statute  of  the  year  1540.^ 
Tenants  By  that  time,  as  we  have  seen,^  it  had  become  clearly 
in  Tail  established,  that  a  tenant  in  tail  could  alienate  the 

estate  in  fee  simple,  by  merely  observing  the  proper  formalities. 
It  was  not,  therefore,  a  very  revolutionary  step  to  provide,  as  the 
statute  of  1540  did,  that  leases  for  twenty-one  years  or  three 
lives  by  a  tenant  in  tail,  to  take  effect  in  immediate  possession, 
with  due  safeguards  against  waste  by  the  lessees,  and  reservation 
of  at  least  the  existing  rent,  should  be  binding  on  the  lessor's 
successors  in  the  entail,  notwithstanding  the  Statute  De  Bonis. 
The  real  enterprise  of  the  Act  is,  that  it  gives  the  same  powers 
to  a  husband  seised  of  lands  in  right  of  his  wife,  i.e.  to  a  person 
whose  interest  was  really  only  a  life  estate.^  A  less  compre- 
hensive alternative  provision,  affecting  tenants  in  tail  only,  was 
contained  in  the  Fines  and   Recoveries  Act,   1833,^  of  which 

1  55  &  56  Vict.  c.  13,  ss.  2-4.  -  S.  14. 

'32  Hen.  VIII,  c.  28,  s.  1.  *  Ante,  pp.  113,  114. 

*  Doubtless    the  statute  uses  the  expression   'having  an  estate  of  inheritance. 
But  the  context  makes  it  clear,  that  if  the  wife  had  an  estate  of  inheritance,  the 
husband,  tenant  by  the  curtesy,  might  exercise  the  statutory  power. 

« 3  &  4  Will.  IV,  c.  74,  s.  41. 


244    A   SHORT  HISTORY  OF  ENGLISH  LAW 

some  explanation  will  shortly  be  given ;  but  the  powers  of  the 
statute  of  Henry  VIII  remained  legally  unafl'ected,  until  the 
passing  of  the  Settled  Estates  Act,  1856/  to  which  reference 
must  now  be  made. 

The  more  complicated  forms  of  family  settlement  introduced 
by  the  conveyancers  of  the  Civil  War,  soon  rendered  the  simple 
provisions  of  the  statute  of  1540  inadequate.  For  the  dangers  of 
forfeiture,  and  other  evils  of  disturbed  times,  could  not  have 
'  Family  been  avoided  by  the  simple  process  of  entailing  the 
Settlements'  family  estate.  Not  merely  would  the  tenant  in  tail, 
in  a  fit  of  enthusiastic  loyalty,  have  been  able  to  bar  the  entail, 
and  pour  the  purchase  money  into  the  royal  coffers ;  but,  after 
the  establishment  of  the  Commonwealth,  he  would  have  been 
liable  to  forfeit  the  whole  estate  for  engaging  in  correspondence 
with  the  exiled  Pretender.^  So  it  was  necessary,  that  the  head  of 
the  family  should  be  sternly  restricted  by  settlement  to  a  life 
interest  in  the  family  land,  followed  by  an  estate  for  protection 
of  his  wife's  pin-money  and  jointure,  and  another  for  the  portions 
of  younger  children,  before  the  first  estate  tail  was  limited  to  his 
eldest  unborn  son.  By  this  means  there  would,  in  most  cases, 
be,  for  at  least  twenty-one  years  after  the  marriage,  no  persons 
able,  even  by  united  action,  to  make  a  binding  lease  of  any  of  the 
land,  much  less  dispose  of  it  entirely. 

The  latter  result  was,  no  doubt,  exactly  what  the  framers  of 
the  settlement  desired ;  but  it  was  a  result  wholly  inconsistent 
with  that  freedom  of  alienation  which  the  Common  Law  courts  of 
the  preceding  period  had  striven  to  uphold.  Nevertheless,  the 
tribunals  of  the  Restoration  period  seem  to  have  accepted  it 
with  equanimity' ;  doubtless  relying  upon  the  liability  of  the 
'  contingent  remainders '  ^  of  the  sons  of  the  marriage  to  failure  as 
safeguarding  the  limitations  of  the  settlement  from  the  dangers 
of  a  '  perpetuity.'  Further  than  this,  the  Chancellors  of  the 
seventeenth  and  eighteenth  centuries,  in  framing  the  Rule  against 
Perpetuities  to  restrict  those  interests  which  did  not  come  under 
the  risk  of  failure  attaching  to  contingent  remainders  (such,  for 

1  19  &  20  Vict.  c.  120. 

^  It  was  for  some  time  an  open  question  whether  entailed  estates  were  forfeitable 
for  troason,  bfyoiid  the  life  of  the  actual  traitor.  But  the  better  opinion  was,  that 
the  risht  of  the  Crown  prevailed  under  5  &  G  Edw.  VI  (1552)  c.  11,  s.  9.  And  it 
was  tolerably  certain  that  the  Long  Parliament  would  not  l)e  more  merciful  to 
'delinquents'  or  'malignants'  than  the  Crown  officials  had  been  to  traitors. 

'  Ante,  pp.  85,  8G. 


CHANGES   IN   LAND   LAW  245 

example,  as  the  future  uses,  or  executory  interests,  now  become 
legal  estates  by  virtue  of  the  Statutes  of  Uses  and  Wills,  and 
limitations  of  personalty),  actually  adopted  the  principle  of  the 
family  settlement,  by  restricting  all  such  limitations  to  a  life 
or  lives  in  being  at  the  date  of  the  settlement  (father  and  mother) 
and  twenty-one  years  afterwards  (majority  of  any  child). ^ 

But  the  evils  of  the  system,  in  tying  up  land,  soon  made 
themselves  felt ;  and  some  attempt  to  relieve  against  them  was 
Express  found  in  the  practice  of  conferring  upon  the  trustees 
Powers  of  settlements  express  powers  of  leasing  and  sale,  as 

well  as  ordinary  powers  of  management.^  Unfortunately,  these 
powers  were  nearly  always  very  restrictively  worded,  often  con- 
fided to  trustees,  and  generally  hedged  about  with  consents; 
with  the  result,  that  they  were  only  to  a  limited  extent  effective. 
At  last  the  legislature  took  up  the  matter,  in  the  Leases  and  Sales 
of  Settled  Estates  Act,  1856,  which  gave  power  to  the  Court  of 
A  t  f  8  6  Chancery  to  authorize  leases  for  occupation,  mining,  or 
building  purposes,^  and  even  to  delegate  similar  power 
to  the  trustees  of  the  settlement,'*  and  to  sell  the  settled  estate  out 
and  out ;  the  proceeds  arising  from  any  disposition  to  be  settled 
upon  the  same  limitations  as  the  property  sold.^  But  the  provi- 
sions of  the  Act  are  timid.  They  require  for  their  exercise  the  con- 
sent of  all  persons  beneficially  interested  in  the  estate  up  to  the 
first  tenant  in  tail  of  full  age  ;  if  there  is  no  such  person,  then  the 
consent  of-  all  persons  beneficially  interested,  including  trustees 
for  unborn  children.*^  Apparently,  they  can  only  be  exercised 
on  the  petition  of  the  first  life  tenant;^  and,  worst  of  all,  they 
can  be  excluded  from  the  settlement  by  express  provision.^  Li 
other  words,  the  Act  only  operated  to  avoid  the  necessity  of  in- 
serting express  provisions  in  a  settlement  intended  to  be  liberally 
drawn ;  it  did  nothing  to  override  the  conservatism  of  settlors. 
But  it  is  only  fair  to  say,  that  one  section^  (which  had,  however, 
no  retrospective  effect)  enabled  a  tenant  for  life  in  possession 
(unless  forbidden  by  the  settlement)  to  make  an  ordinary  lease 
for  twenty-one  years,  without  any  one's  consent ;    though  this 

^  See  the  cases  quoted,  ante,  p.  225,  n.  1. 

^  See  forms  in  Barton,  Modern  Precedents  in  Conveyancing  (3d  edition,  1824)  pp. 
248,  351  et  seq.,  462  et  seq. 

3  19  &  20  Vict.  c.  120,  s.  2.  «  S.  7.  ^  g   23.  «  S.  17.  ^  S.  16. 

*  S.  26  (even  'manifest  intention'  to  exclude  is  enough).  '  S.  32. 


246    A   SHORT  HISTORY  OF  ENGLISH  LAW 

power  did  not  extend  to  authorize  a  lease  of  the  mansion  house 
or  demesne. 

The  Act  of  1856  was  followed  by  a  series  of  '  Public  Money 

Drainage    Acts,'    by    which    limited    owners    were    authorized, 

subiect  to  restrictions,  to  pledge  the  inheritance  of 

Improve-  ,     •     ,        ,  i        •  i  •        i  i 

ment  of  their  lands  to  repay  by  nistalments  monies  borrowed 

for  the  purpose  of  effecting  permanent  improvements ; 
and  these  spasmodic  efforts  culminated  in  the  Improvement  of 
Land  Act,  1864,  and  its  various  amendments,  by  which  this 
policy  is  made  permanent.  Broadly  speaking,  a  limited  owner  in 
possession  is  entitled,  with  the  approval  of  the  Board  of  Agricul- 
ture, to  borrow  money  for  various  kinds  of  permanent  im- 
provements,^ and  secure  it  on  the  corpus  of  his  estate  bj^  a 
terminable  rent-charge  extending  over  twenty-five  years.  Such 
a  rent-charge  even  takes  priority  of  ordinary  incumbrances  of 
earlier  date."  A  useful  provision  of  the  later  Settled  Land  Act 
of  1882,^  also  authorizes  the  improvements  sanctioned  by  the 
Improvement  of  Land  Act  and  the  Settled  Land  Acts  to  be 
paid  for  out  of  capital  arising  under  the  latter  Acts ;  and  similar 
provisions  are  contained  in  one  or  two  other  modern  statutes.* 
But  a  '  tenant  for  life  '  under  the  Settled  Land  Acts  cannot 
mortgage  under  these  Acts  for  the  purpose  of  effecting  improve- 
ments. 

The  Settled  Estates  Act  of  1856  was  superseded  in  1877  by 
another  Act  with  a  similar  title  and  scope,  which  seems  to  have 

,   „       been  very  little  improvement  on  its  predecessor.     It 
Act  of  1877    .  ,       .     ,.         ^        PI  •        P- 

IS  true  that  it  dispenses,  tor  the  exercise  or  its  statutory 

powers,  with  the  consent  of  persons  subsequent  to  the  infant 
tenant  in  tail,  and  some  other  persons  with  very  remote  interests ;  ^ 
but  it  adopts  the  radical  defects  of  the  older  measure  in  making 
the  consent  of  the  Court  essential  to  the  exercise  of  the  statu- 
tory powers,  and  entrusting  the  exercise  of  them  chiefly  to 
the  trustees  of  the  settlement  —  persons  naturally  and  pro- 
verbially disinclined  to  undertake  responsibility.  It  is,  in  fact, 
not  easy  to  see  how  the  Act  of  1877,  which  is  still  in  force,  is 

'  These  will  be  found  enumerated  in  s.  9  of  the  Improvement  of  Land  Act,  1864, 
and  in  s.  30  of  the  Settled  Land  Act,  1882. 

-  Improvement  of  Land  Act,  1864,  s.  63.  '  S.  21  (iii). 

■•  E.g.  the  Housing  of  the  Working  Classes  Act,  1890.  s.  74,  and  the  Agricultural 
Holdings  Act,  190S,  s.  20. 

*  Settled  Estates  Act,  1877,  s.  25,  27. 


CHANGES  IN  LAND  LAW  247 

any  improvement  on  its  predecessor.  But  it  is  occasionally 
resorted  to  for  special  purposes,  e.g.  when  a  dowress,  who  is 
not  a  '  tenant  for  life  '  under  the  Sett'ed  Land  Act,  1882,^  de- 
sires to  make  a  lease. ^ 

A  sweeping  change  was,  however,  brought  about  by  the  policy 
of  the  Settled  Land  Act,  1882,^  and  its  various  amendments. 
The  Settled  The  great  statute  is  conceived  on  bold  and  successful 
Land  Acts  lines.  Treating  all  limited  owners  in  possession  as 
virtually  entitled  to  control,  not  merely  the  management  and 
administration  of  the  land,  but  the  form  which  the  investment  of 
the  settled  capital  shall  take,  the  statute,  and  its  amendments,"* 
in  effect  empower  any  such  person  to  sell,  exchange,  enfran- 
chise, partition,  lease,  or  effect  permanent  improvements  in  any 
part  of  the  settled  land,  by  dispositions  which  will  bind,  not 
merely  the  person  making  them,  but  all  the  interests  comprised 
in  the  settlement.^  ^Moreover,  the  exercise  of  these  powers  is  in 
the  absolute  discretion  of  the  '  tenant  for  life  ' ;  except  in  certain 
special  cases,  such  as  the  disposal  of  the  mansion  house  and 
demesnes,  or  the  heirlooms,  or  the  cutting  of  timber.  In  such 
cases,  the  consent  of  the  Court  or  the  trustees  is  required.^  Fur- 
ther still,  no  alienation  of  his  own  personal  interest  is  to  deprive 
the  '  tenant  for  life  '  of  his  statutory  powers  ;  ^  except  to  the  extent 
to  which  it  is  necessary  to  protect  a  purchaser  for  value  from  him. 
Most  important  of  all,  no  expression  or  device  in  the  settlement, 
direct  or  indirect,  can  deprive  the  tenant  for  life  of  his  statutory 
powers,  or  even  restrict  him  in  the  exercise  of  them ;  ^  though, 
needless  to  say,  the  '  tenant  for  life'  is  bound,  as  between  him- 
self and  the  other  persons  interested,  to  act  in  a  quasi-fiduciary 
manner,  for  the  benefit  of  all  parties  concerned.^  Not  only, 
however,  may  the  '  tenant  for  life  '  convert  the  estate  or  any 
part  of  it  into  money ;  he  has  within  the  provisions  of  the 
Acts,  control  over  the  re-investment  of  the  money  produced  by 

^  See  enumeration  in  s.  58  of  that  Act. 

^  Which  she  can  do  under  s.  46  of  the  Act  of  1877. 

M5  &  46  Vict.  c.  38,  s.  1. 

^  Amending  statutes  were  passed  in  1884,  1887,  1889,  and  1890. 

=  Act  of  1882,  s.  2  (2),  s.  3. 

^  Act  of  1882,  ss.  35,  37 ;  Act  of  1890,  s.  10.  (The  consent  of  the  Court  is  essential 
to  the  sale  of  heirlooms.) 

'  Act  of  1882,  s.  50.  »  Re  Richardson  [1904]  2  Ch.  777. 

^Act  of  1882,  s.  53.  This  section  actually  invests  him  with  the  'duties  and 
liabilities  of  a  trustee.'  But,  in  spite  of  these  express  words,  it  is  doubtful  whether 
the  'tenant  for  life'  is,  technically,  a  'trustee.' 


248    A   SHORT  HISTORY  OF  ENGLISH  LAW 

such  a  conversion/  and  may  employ  it  in  effecting  improve- 
ments, paying-off  incumbrances,  or  converting  copyholds  or 
leaseholds  into  freeholds.-  He  may  even  mortgage  for  the  two 
latter  purposes  ^  though  not  for  the  former.  But  the  actual 
custody  of  capital  monies  arising  under  a  settlement  is  with  the 
trustees  or  the  Court,  not  with  the  tenant  for  life  ;^  and  the  trustees 
are  bound  to  look  after  the  interests  of  all  parties  concerned. 

Such  vigorous  action  has  been  taken  under  the  Settled  Land 
Acts,  and  this  action  has  been  so  beneficial,  that  it  seems  almost 
Flaws  in  the  ungracious  to  point  out  that  time  has  revealed  at  least 
the  Acts  three  ways  in  which  the  policy  of  the  Acts  can  be 
substantially  evaded.  In  the  first  place,  it  is  possible  for  a 
settlor  to  vest  the  immediate  income  of  the  land  in  trustees,  with 
a  purely  discretionary  trust  to  make  an  allowance  to  the  person 
who  would  otherwise  be  tenant  in  possession,  and  even  to  allow 
such  person,  if  they  think  fit,  to  occupy  the  mansion  house. 
There  will  then  be  no  '  tenant  for  life  '  for  the  purposes  of  the 
Acts ;  for  the  trustees  are  not  '  beneficially  entitled  '  to  the 
income,  and  the  beneficiary  is  not  '  entitled.'  ^  Second,  though 
the  circumstance  that  in  fact  (owing  to  the  existence  of  incum- 
brances or  other  causes)  the  first  life  tenant  under  the  settlement 
receives  no  income,  will  not  prevent  him  exercising  the  statutory 
powers  ;  ^  yet,  a  person  whose  interest  is  actually  postponed  during 
the  operation  of  a  trust  for  accumulation,  is  not  a  '  tenant  for 
life  '  under  the  Acts,  and  so  cannot  exercise  the  powers.^  Fi- 
nally, by  the  device  of  an  assignment  for  value,  a  tenant  for  life 
can  always,  in  effect,  deprive  himself  of  the  right  to  exercise  at 
least  some  of  his  statutory  powers  without  the  consent  of  his 
purchaser,^  which   cannot  be   compelled. 

A  few  words,  but  they  must  be  few,  should  be  said  about  the 
analogous  case  of  mortgagee  and  mortgagor.  The  persistent 
Statutory  cfforts  of  Equity,  previously  described,^  to  protect 
Powers  of      ^j^g  interest  of  the  mortgagor  against  the  unfair  exer- 

Mortgagees       •11  o   f^  o 

and  Mort-  CISC  by  the  mortgagee  of  his  legal  powers,  had  m 
gagors  effect,  by  the  end  of  the  eighteenth  century,  produced 

a  deadlock  ajmost  equivalent  to   that  of   the   settlement  sys- 

>  Act  of  1882,  ss.  21,  22  (2).  -  Re  Bruce  [1905]  2  Ch.  372. 

'  Act  of  1882,  s.  18;    Act  of  1890,  s.  11.  "  Act  of  1882,  s.  22. 

^  Jemmett's  and  Guest's  Contract  [1907]  1  Ch.  629.  *  Re  Pollock  [1906]  1  Ch.  146. 

'  Re  Strangways  (1886)  34  Ch.  D.  423  {Non  obstante  Re  Llewellyn  [911]  1  Ch.  451). 

»  Act  of  1882,  8.  50  (3).     (But  see  Act  of  1890,  s.  4.)  »  Ante,  pp.  215,  216. 


CHANGES  IN  LAND   LAW  249 

tern.  No  third  party  could  safely  deal  with  the  mortgagee ; 
because  such  dealing  might  be  set  aside  by  Equity  after  re- 
demption. The  mortgagor,  of  course,  had  no  legal  powers ;  his 
alienees  could  be  treated  by  the  mortgagee  as  mere  tenants  at 
will.  Unless  mortgagee  and  mortgagor  could  agree  (which 
was  but  seldom)  nothing  could  be  done.  The  property  was 
under  a  curse. 

It  is  true,  that  many  mortgagees  endeavoured  to  get  over 
the  difficulty  by  reserving  in  the  mortgage  deeds  express  powers 
of  sale,  leasing,  and  management,  exerciseable  without  the  mort- 
gagor's consent ;  but  there  was  always  the  fear  lest  Chancery 
should  quash  these  powers  as  oppressive,  or  as  attempts  to  '  clog 
the  equity.'  It  was  a  case  for  the  legislature ;  and  at  last  the 
legislature  intervened,  and  by  the  Law  of  Property  Amendment 
Act  of  1860  (commonly  known  as  Lord  Cran worth's  Act)^ 
conferred  upon  every  mortgagee,  after  default  in  payment  of 
principal  or  interest,  the  power  to  sell  the  mortgaged  land  and 
pay  himself  out  of  the  proceeds,  and  to  insure  any  insurable 
property,  and  to  appoint  a  receiver  of  the  rents  and  profits. 
But  these  powers  did  not  include  any  power  to  lease ;  and  they 
could  all  be  excluded  by  the  express  terms  of  the  mortgage.^ 

More  drastic  was  the  policy  of  the  Conveyancing  Act,  1881, 
which  not  only  re-enacted  the  powers  of  sale,  insurance,  and 
appointing  a  receiver,^  but  conferred  upon  either  mortgagee 
or  mortgagor,  when  in  possession,  power  to  make  binding  leases,* 
substantially  of  the  same  nature  as  those  subsequently  authorized 
by  the  Settled  Land  Act  for  the  tenant  for  life,  and  also  conferred 
upon  the  mortagor  the  valuable  rights  of  demanding,  on  re- 
demption of  the  mortgage,  a  transfer  thereof  instead  of  a  re- 
conveyance,^ and,  even  before  redemption,  of  inspecting  and 
taking  copies  of  the  title-deeds.^  It  also  entitles  a  mortgagee  in 
possession  to  cut  ordinary  timber  (of  course  subject  to  account), 
and  even  to  make  a  binding  twelve-months'  contract  for  such 
cutting.^  It  is  noteworthy  that,  while  the  powers  of  the  mortgagee 
may  be  waived  by  express  provision  in  the  mortgage,^  those  in- 
serted for  the  special  benefit  of  the  mortgagor  cannot  be  restricted.^ 
It  is  noteworthy  also  that,  by  empowering  the  Court  to  order 

1  23  &  24  Vict.  c.  145,  ss.  11-24.  -  S.  32.  ^  Act  of  1881,  s.  19. 

^  S.  18.  (But  there  is  no  provision  for  anything  in  the  way  of  a  mining  lease.) 
^  S.  15.  (This  power  cannot  be  exercised  if  the  mortgagee  has  been  in  possession.) 
«S.  16.  'S.  16  (iv).  ^Ihid.,  (3).  ^  Ss.  15  (3),  16  (2.) 


250    A  SHORT  HISTORY  OF  ENGLISH  LAW 

a  sale,  instead  of  a  foreclosure  or  reconveyance,  in  any  action  for 
foreclosure  or  redemption,^  and  by  providing  that  all  mortgage 
estates,  even  though  of  a  freehold  nature,  shall  pass  to  the  mort- 
gagee's personal  representatives  on  his  death,"  the  Act  alleviated 
many  of  the  difficulties  and  hardships  formerly  attendant  upon 
the  realization  of  mortgages. 

In  one  other  direction  the  same  tendency  towards  freedom  of 
alienation  may  be  observed;  though,  again  perhaps,  working 
Liability  of  indirectly.  As  has  been  previously  pointed  out,^ 
satisfy"  feudal  principles  were  opposed  to  making  land  liable 

Debts  iq  seizure  for  the  debts  of  its  owner.     True  that  one 

of  the  great  thirteenth  century  statutes^  had  allowed  the  judg- 
ment creditor  to  '  extend  '  one  half  his  debtor's  lands,  in  lieu  of 
taking  his  body  and  goods,  and  that  the  specialty  debts  of  a 
deceased  landowner  were  enforceable  against  his  heirs.  Early 
in  the  present  period,  also,  as  we  have  seen,  trust  estates  of 
inheritance  were  added  to  the  list  of  '  real  assets,'  and  the  remedy 
of  specialty  creditors  was  extended  from  heirs  to  devisees.^ 
But  it  was  not  until  1807  ^  that  simple  contract  creditors,  and  then 
only  when  the  debtor  was  a  trader,  were  entitled  to  be  paid  out 
of  the  land  of  a  deceased  debtor.  In  1833,  however,^  this  liability 
was  extended  to  the  lands  (including  copyholds)  of  all  debtors; 
and  in  1838,*  all  the  lands  of  a  living  debtor  (also  including 
copyholds)  were  made  available  to  satisfy  the  claims  of  his 
judgment  creditors.  Improved  remedies  were  added  in  1864^ 
for  the  purpose  of  giving  effect  to  these  claims ;  and  a  statute  of 
1869,^°  commonly  known  as  '  Hinde  Palmer's  Act,'  by  abolishing 
the  priority  of  specialty  debts,  greatly  simplified  the  distribution 
of  the  assets  of  a  deceased  person  among#  his  creditors.  Finally, 
the  earlier  sections  of  the  Land  Transfer  Act,  1897,^^  by  vesting  the 
real  estate  of  a  deceased  person  (other  than  legal  copyholds) 
in  his  personal  representatives,  the  ordinary  distributors  of  his 
property,  greatly  facilitated  the  machinery  for  obtaining  pay- 
ment of  debts  out  of  such  property. 

»  S.  25.  2  s  30.  3  ^nle,  pp.  36,  37. 

*  Statute  of  Westminster  II  (13  Edw.  I,  1285)  c.  18. 

^  Ante,  pp.220.  221.  M7  Geo.  Ill,  st.  II,  c.  74. 

» Administration  of  Estates  Act  (3  &  4  Will.  IV,  c.  104). 

«  Judgments  Act  (1  &  2  Vict.  c.  110,  s.  11). 

'Judgments  Act  (27  &  28  Vict.  c.  112,  ss.  4-6). 
'"Administration  of  Estates  Act  (32  &  33  Vict.  c.  46). 
"  60  &  61  Vict.  c.  65  sa.  1-4. 


CHANGES  IN  LAND  LAW  251 

The  Act  to  Amend  the  Law  of  Inheritance,  passed  in  the  year 
1833/  though  it  cannot  be  overlooked  entirely,  in  any  work 
Rules  of  professing  to  deal  with  the  history  of  English  law, 
Inheritance  -g  j^g^j-jiy  g,  matter  of  first-rate  importance.  Owing  to 
the  fact  that  a  landowner  rarely  dies  without  leaving  a  will,  its 
provisions  are  but  seldom  resorted  to.  Moreover,  unlike  the 
Wills  Act  of  four  years  later,  it  is  not  a  code,  but  merely,  as  its 
title  implies,  a  statute  designed  to  remedy  certain  defects  in  the 
Common  Law.  That  law  had,  as  we  have  seen,^  become  fixed 
in  outline  by  the  end  of  the  thirteenth  century.  But  in  one 
important  respect  the  later  Common  Law  had  departed  from 
fundamental  principles.  By  those  principles,  no  one  could  inherit 
a  fief  unless  he  was  descended  from,  or  at  least  of  the  blood  of,  the 
first  acquirer,  or  '  purchaser '  of  the  fief.  But  the  great 
importance  attached  by  medieval  law  to  'seisin,'  or  corporal 
possession  of  the  land,  had  virtually  substituted  the  '  person  last 
seised  '  for  the  original  donee  of  the  fief,  except  in  the  case  of 
estates  tail ;  though  the  rule  that  the  heir  must  be  '  of  the  blood  ' 
of  the  first  purchaser  was  in  theory  preserved.^  The  Act  of  1833 
restored  the  ancient  rule ;  dispensing  with  the  requirement  of 
seisin  in  the  stock  of  descent,  and  making  descent  in  every  case 
traceable  from  the  last  purchaser,^  i.e.  the  person  who  last 
acquired  the  estate  otherwise  than  by  inheritance.  Further,  the 
Act  made  a  substantial  change^  by  admitting,  next  after  the 
issue  of  the  purchaser,  his  nearest  ancestor  to  succeed,  and  collat- 
erals only  through  ancestors,  and  by  allowing  the  claim  of  the 
half-blood  collaterals  to  prevail,  next  after  the  claims  of  collaterals 
of  the  whole  blood  of  the  same  degree,  and  their  issue.  ^  The  pref- 
erences given  by  the  common  law  to  males  over  females  and  to  an 
elder  male  over  a  younger  in  the  same  degree,  were  not,  however, 
altered ;  and  the  peculiar  local  customs  of  copyhold  and  gavelkind 
were,  save  as  to  the  rule  of  descent  from  the  purchaser,  also  left 
untouched. 

Far  more  important,  really,  in  the  law  of  succession  than  the 
Inheritance  Act,  has  been  the  series  of  short  statutes  known  as 
'  Locke  King's  Acts,'  ^  designed  to  mitigate  the  preference  given 

1  3  &  4  Will.  IV,  c.   106.        2  Ante,  pp.  34-36.        ^  Blackstone,  Comm.,  II,  221. 

*  Inheritance  Act,  1833,  s.  2.  (An  amendment  of  1859  admitted  the  heirs  of  the 
person  last  entitled,  (not,  necessarily,  'seized'),  after  failure  of  the  heirs  of  the 
purchaser.)  ^  Ss.  5,  6.  ®  S.  9. 

'Officially  styled  the  'Real  Estates  Charges  Acts,  1854,  1867,  and  1877.' 


252    A   SHORT   HISTORY  OF  ENGLISH  LAW 

both  by  Law  and  Equity  to  beneficiaries  interested  in  land  over 
Locke  King's  tliose  having  claims  only  on  personalty.  By  the 
Acts  older  law,  if  a  testator  had  mortgaged  his  freehold 

estate,  and  then  died,  leaving  a  will  under  which  his  real  estate 
went  to  A  and  his  personalty  to  B,  A  would  have  been  entitled 
to  demand  that  the  mortgage  debt  should  be  paid  off  out  of 
the  testator's  personalty,  for  the  purpose  of  clearing  the  real 
estate ;  and  a  similar  principle  applied  if  the  owner  of  the  estate 
had  died  intestate,  leaving  A  as  his  heir  and  B  as  his  next-of-kin. 
If  the  testator  or  intestate  had,  in  fact,  used  the  mortgage 
money  to  pay  his  general  debts,  there  was  little  hardship  in  this 
rule.^  But  if,  as  commonly  happened,  the  mortgage  money  had 
been  actually  borrowed  to  enable  the  deceased  to  purchase  the 
real  estate,  the  hardship  was  obvious.  Accordingly,  in  1854,  it 
was  enacted,^  that  in  such  a  case,  neither  devisee  nor  heir  should 
be  entitled  to  claim  payment  out  of  the  personal  estate ;  but 
that,  as  between  the  different  beneficiaries,  each  estate  should 
bear  its  own  burdens.  And,  by  later  statutes,^  the  new  rule 
has  been  extended  to  liens  for  unpaid  purchase-money  and  to 
leasehold  interests.  It  does  not,  however,  apply  to  pure  person- 
alty ;  a  specific  legatee  of  which  is  still  entitled  to  have  any  in- 
cumbrance cleared  out  of  the  general  personal  estate.*  Of 
course  both  old  and  new  rules  are  subject  to  any  expression  of 
intention  by  the  deceased,  contained  in  his  will  or  other  docu- 
ment ;  but  a  mere  general  direction  for  payment  of  debts  out 
of  personal  estate  is  not  such  an  expression.^  Finally,  it  may  be 
mentioned  that  the  old  rule  of  preference  for  the  beneficiaries 
of  the  real  estate  never  applied  where  that  estate  was  already 
mortgaged  before  it  was  acquired  by  the  deceased  ('  mortgage 
ancestral  ').^  Needless  to  say,  Locke  King's  Acts  in  no  way  affect 
the  right  of  a  mortgagee  to  resort  to  his  mortgagor's  personal 
estate,  either  before  or  after  exhausting  his  security.  The  matter 
is  put  right  between  the  beneficiaries  by  the  process  of  *  mar- 
shalling,' previously  described.^ 

'  Except  that,  in  case  of  an  intestacy,  the  result  might  be  to  favour  a  very  distant 
heir  at  the  expense  of  much  nearer  next-of-kin. 

2  17  &  18  Vict.  c.  113. 

3.30  &  31  Vict.  (1867)  c.  69;   40  &  41  Vict.  (1877)  c.  34. 

*  Bolhamley  v.  Sherson  (1875)  L.  R.  20  Eq.  304. 

'.30  &  31  Vict.  c.  69,  s.  1. 

«  Evelyn  v.  Evelyn  (1728)  2  P.  Wms.  659  (Lord  King) ;  Parsons  v.  Freeman 
(1751)  .\mbl.  115  (Lord  Hardwicke).  ^  Ante,  pp.  230,  231, 


CHANGES  IN  LAND  LAW  253 

Attention  should  also  be  given  to  the  extremely  important 
Real  Property  Act  of  1845/  which,  though  its  efforts  were 
Contingent  mainly  directed  to  sweeping  away  the  technicalities 
Remainders  Qf  medieval  conveyancing,  also  made  one  important 
change  in  substantive  law.  A  statute  of  the  preceding 
year  ^  had  endeavoured  to  abolish  altogether  contingent  re- 
mainders ;  but  this  somewhat  extreme  step  was  recalled  in 
1845,  and  a  provision  enacted  which  prevented  the  '  failure  ' 
or  destruction  of  the  interests  of  remaindermen  by  collusion  of 
other  parties  to  the  settlement.  Owing  to  the  rule,  previously 
alluded  to,^  that  if  a  contingent  remainder  was  not  ready  to  take 
effect  in  possession  on  the  expiry  of  the  preceding  estate,  it 
'  failed,'  or  disappeared  entirely,  it  was  possible  for  the  tenant  for 
life  under  a  settlement,  prior  to  the  birth  or  conception  of  the 
first  remainderman  in  tail,  by  procuring  a  forfeiture  of  his 
estate,  or  a  surrender  of  it  to  the  next  vested  remainderman,  to 
destroy  his  (the  tenant  for  life's)  estate,  and  thus,  with  it,  the 
contingent  remainders  dependent  upon  it.  This  practice,  which 
was  the  more  reprehensible  that  the  persons  for  whom  the  contin- 
gent remainders  were  intended  were  usually  the  tenant  for 
life's  own  children,  was  largely  resorted  to  ;  and  the  only  way  by 
which  it  could  be  prevented  was  by  the  rather  clumsy  device  of 
appointing  '  trustees  to  preserve  contingent  remainders,'  i.e.  to 
hold  for  the  residue  of  the  natural  life  of  the  tenant  in  possession.  ^ 
But  the  Act  of  1845^  rendered  this  device  unnecessary,  by  provid- 
ing that  the  contingent  remainder  should  be  capable  of  taking 
effect  in  due  course ;  notwithstanding  such  prior  artificial 
destruction  of  the  preceding  estate.  The  year  1877  ^  saw  an  ex- 
tension of  this  policy,  in  the  Act  which  rendered  contingent 
remainders  indestructible,  notwithstanding  the  natural  expiry  of 
the  preceding  estate  ;  provided  that  they  did  not  violate  the  Rule 
against  Perpetuities.^  This  provision,  which  is,  however,  only 
applicable  to  settlements  made  after  the  passing  of  the  Act, 
virtually  assimilated  Common  Law  remainders  to  the  newer 
executory  interests  limited  by  way  of  use,  and  operating  under 
the  Statute  of  Uses.^ 


» 8  &  9  Vict.  c.  106.  2  7^8  Vict.  c.  76.  »  Ante,  p.  85. 

^Mansell  v.  Mansell  (1732)   2  P.   Wms.  678.  ^  S.  8. 

^Contingent  Remainders  Act  (40  &   41  Vict.  c.  33).  ''Ante,  pp.  244,  245. 
8  27  Hen.  VIII  (1535)  c.  10. 


254    A   SHORT   HISTORY   OF  ENGLISH   LAW 

But  a  few  words  must  also  be  said  about  the  changes  in  the 
methods  of  con\cyancing  introduced  during  this  period. 

One  of  the  early  efforts  of  the  reformed  Parliament  was  directed 
towards  doing  away  with  the  necessity  for  resorting  to  the 
Abolition  of    cumbrous  Conveyances  known  as  Fines  and  Recoveries. 

Fines  and        t     i         i  ' •         i  i    •        i  i  i  •  i        • 

Recoveries  it  has  been  previously  explained  how,  m  early  times, 
these  costly  fictions  performed  the  useful  task  of  covering  the 
introduction  of  reforms  which  could  not  be  openly  effected.  But 
these  times  were  long  past ;  and  now  Fines  and  Recoveries  were 
merel}^  means  of  exacting  fees  from  persons  dealing  in  land. 
In  the  year  1833,  accordingly,  they  were  entirely  superseded  by 
simple  conveyances  enrolled  in  Chancery ;  ^  the  additional 
ceremony  of  examination  by  the  Court  or  independent  com- 
missioners being  imposed  in  the  case  of  married  women  who  were 
disposed  to  alienate  their  lands. 

It  will  be  remembered  that,^  soon  after  the  passing  of  the 
Statute  of  Uses,  the  ingenuity  of  conveyancers  had  at  last 
overcome  the  medieval  principle  that  freehold  estates 
veyances  °'  ^^^  possession  could  only  be  created  or  transferred  by  liv- 
ery of  corporal  seisin,  or  '  feofi'ment.'  The  common  law 
principle  had  never  been  applied  to  equitable  interests,  which  were 
merely  subject  to  the  formality  of  writing,  prescribed  by  the  Statute 
of  Frauds.^  But,  until  nearly  the  middle  of  the  nineteenth  century, 
the  common  law  rule  prevailed,  in  theory,  for  legal  estates ;  and 
was  only  evaded  by  the  clumsy  device  of  the  Lease  and  Release.^ 
In  1845,  however,  the  Real  Property  Act,^  by  providing  that 
'  all  corporeal  tenements  and  hereditaments  shall,  as  regards  the 
conveyance  of  the  immediate  freehold  thereof,  be  deemed  to  lie 
in  grant  as  well  as  in  livery,'  virtually  made  a  simple  deed  of 
grant  effectual  to  convey  any  interest  in  land  inter  vivos,  and 
thus  at  last  formally  recognize  the  validity  of  secret  conveyances 
of  corporeal  hereditaments.  Furthermore,  the  statute  made  a 
complete  destruction  of  the  medieval  theory,  by  providing,  not 
merely  that  a  deed  should  be  effective  for  all  purposes  without 
a  livery,  but  by  enacting,^  that  livery  without  a  deed  or  writing 
should  not  be  effective  at  all ;  and  by  abolishing  all  those  peculiar 

^  Ante,  pp.  112-118. 

2  Finos  and  Itocoveries  Act  (3  &  4  Will.  IV,  c.  74).  '  Ante,  pp.  121,  122. 

*  29  Car.  II  (1677)  c.  3,  ss.  7-9.  ^  Ante,  pp.  121,  122. 

*  S.  2.  The  amondinont  had,  in  substance,  been  made  by  an  Act  of  the  previous 
year  (7  &  8  Vict.  c.  76,  s.  2).  '  S.  3. 


CHx\NGES   IN   LAND   LAW  255 

virtues  of  a  feoffment  which  depended  upon  its  '  tortious  '  opera- 
tion.^ Naturally  the  medieval  feoffment,  now  a  mere  superfluous 
luxury,  has  disappeared  from  modern  conveyancing ;  save  in 
those  rare  cases  in  which  a  person,  though  incapable  of  making  a 
binding  deed,  is,  by  local  custom,  able  to  convey  by  feoft'ment.^ 
The  statute  further  emphasizes  the  importance  of  deeds,  in  modern 
conveyancing,  by  enacting  ^  that  all  transfers  required  by  the 
Statute  of  Frauds  to  be  in  writing  must  be  made  by  deed,  in 
order  to  pass  the  legal  estate.  This  provision,  however,  does  not 
affect  the  passing  of  equitable  interests,  nor  the  conveyance  of 
copyholds  by  surrender  and  admittance.'*  A  little  noticed,  but 
really  important  section  of  the  statute,^  to  which  effect  has 
recently  been  given  by  a  decision  of  the  House  of  Lords,^  abolished 
the  former  technical  rule  that  a  man  could  not  acquire  an  im- 
mediate interest,  or  take  the  benefit  of  a  covenant  or  condition, 
under  an  indenture  to  which  he  was  not  a  party. 

The  scope  of  this  work  does  not  permit  of  reference  in  detail 
to  the  important  provisons  of  the  Vendor  and  Purchaser  Act, 
1874,^  and  the  Conveyancing  Act,  1881,^  which  aim  at  reducing 
the  expense  of  conveyancing  by  limiting  the  rights  of  a  purchaser 
under  an  open  contract  in  the  matter  of  demanding  evidence  of 
the  vendor's  title,  and  at  diminishing  the  risk  of  mistakes,  by 
shortening  the  forms  of  deeds  and  allowing  alternatives  in  the  use 
of  technical  words  to  pass  heritable  estates.^  Space  remains 
only  for  a  very  brief  sketch  of  the  history  of  the  attempts  made 
to  realize  that  cherished  dream  of  law-reformers,  which,  as  we 
have  seen,^°  haunted  the  minds  even  of  the  members  of  the 
Little  Parliament,  viz.  the  registration,  in  a  public  and  accessible 
form,  of  all  dealings  with  land. 

With  the  exception  of  the  experiment  tried  at  the  passing, 
in  1663,  of  the  Act  for  regulating  the  affairs  of  the  great  '  Bedford 
Level  '  of  the  eastern  fen  country,^^  then  recently  reclaimed, 

^  S.  4.  Certain  other  changes  of  minor  importance  were  made  by  this  section. 
(As  to  the  'tortious  operation'  of  a  feoffment,  see  ante,  pp.  107-109.) 

^  E.g.  an  infant  holding  land  subject  to  the  custom  of  gavelkind.  But  the  only 
case  of  recent  years  reported  on  this  point  shows  the  danger  of  relying  on  such  a 
feoffment  {Maskell's  and  Goldfinch's  Contract  [1895]  2  Ch.  525). 

3  S.  3.  "  Ibid.  6  s.  5. 

^  Dyson  v.  Forster  [1909]  A.C.  98.  ^  37  &  35  Vict.  c.  78,  ss.  1,  2. 

844  &  45  Vict.  c.  41,  ss.  3-9,  51,  &c. 

»  Conveyancing  Act,  1881,  ss.  6-9,  and  51.  The  case  of  Re  Ethel,  &c.  [1901] 
1  Ch.  945,  shows,  however,  that  the  new  words  of  inheritance  are  just  as  technical  as 
the  old.  10  Ante,  pp.  178-182.  "  15  Car.  II,  c.  xvii. 


256    A   SHORT   HISTORY   OF   ENGLISH   LAW 

after  many  unsuccessful  attempts,  by  the  Earl  of  Bedford, 
it  was  not  until  the  beginning  of  the  eighteenth  century  that  any 
definite  step  was  taken  to  carry  out  the  suggestions  of  the  Little 
Parliament.  In  the  first  decade  of  that  century,  however, 
Land  Reg-  ^lie  West  and  East  Ridings  of  Yorkshire,  and  the 
istration  Couutv  of  Middlesex,  as  the  result  of  genuine  popular 
movements,  adopted  schemes  of  registration;  and  the  North 
Riding  of  Yorkshire  followed  suit  in  1735.^  But  the  reader  should 
be  cautioned  against  assuming  that  the  Yorkshire  and  INIiddlesex 
schemes  are  of  the  same  character  as  the  Torrens  system  of  the 
British  colonies,  or  the  English  experiments  of  the  latter  half 
of  the  nineteenth  century.  The  Yorkshire  and  INIiddlesex 
schemes  aimed  only  at  the  registration  of  documents ;  i.e.  they 
were  simply  directed  against  the  evils  arising  from  the  existence 
of  concealed  conveyances.  All  that  they  did  was  to  protect  a 
purchaser  from  being  deprived  of  his  purchase  through  the  effect 
of  some  secret  document,  of  the  existence  of  which  he  was  unaware 
when  he  paid  his  money.  They  did  not  pretend  to  guarantee  the 
positive  validity  of  the  title  on  the  faith  of  which  he  bought. 
Thus,  to  take  a  very  simple  example,  if  B  professed,  as  devisee  of 
A,  to  sell  land  in  Yorkshire  to  X,  and  X  duly  searched  the  registry 
of  the  appropriate  Riding  and  found  everything  apparently  in 
order,  he  would  be  protected  against  a  claim  by  a  previous  pur- 
chaser from  B,  who  had  not  registered  his  conveyance.  But 
he  would  lose  his  land  if  A's  alleged  will  turned  out  to  be  a  forged 
document,  or  if  B,  the  supposed  devisee  under  it,  were  not  really 
the  devisee,  but  a  person  passing  himself  off  as  the  devisee. 
Still  less  would  he  be  protected,  if  A's  title  (for  any  cause  other 
than  a  concealed  document)  was  defective.  Thus,  though  the 
protection  afforded  by  the  acts  was  considerable,  it  was  not 
sufficient  to  arouse  enthusiasm ;  and,  in  fact,  no  serious  steps 
were  taken  to  extend  it,  X>t  any  other  system  of  registration,  to 
the  rest  of  England,  until  the  middle  of  the  nineteenth  century. 
^Moreover,  it  was  held  that,  notwithstanding  the  unqualified 
words  of  the  old  Middlesex  Registry  Act,  the  City  of  London 
(which,  so  far  as  the  value  of  land  is  concerned,  is  probably  equal 

■  The  statutes  are,  2  &  3  Anne  (1703)  c.  4  (West  Riding),  6  Anne  (1707)  c.  35 
(East  Riding),  7  Anne  (1708)  c.  20  (Middlesex),  8  Geo,  II  (1735)  c.  6  (North 
Riding).  These  have  been  superseded  by  the  Yorkshire  Registries  Act,  1884,  and 
the  Middlesex  Registry  Act,  1891,  in  their  respective  spheres. 


CHANGES   IN  LAND  LAW  257 

to  the  whole  of  the  rest  of  the  county)  was  excluded  from  the 
provisions  of  the  Act. 

But,  soon  after  the  middle  of  the  nineteenth  century,  the  wave 
of  legislative  reform,  which,  as  we  have  seen,  had  been  busy 
,     .  on  questions  of  land  law,  reached  the  subject  of  regis- 

Westbury's  tration  of  title ;  and  two  statutes,  generally  associated 
with  the  name  of  Lord  Westbury,  were  passed  in  1862  to 
deal  with  it.  By  the  former  of  these,  the  Land  Registry  Act,  1862,^ 
provision  was  made  for  the  establishment  of  a  Registry,  appli- 
cable to  the  whole  kingdom,  which  should  not  merely  profess  to 
give  a  purchaser  notice  of  documents  affecting  his  title,  but 
should  actually  provide  a  State  guarantee  of  the  validity  of  all 
titles  appearing  on  the  register.  Naturally,  however,  the  State 
declined  to  assume  this  very  serious  liability  in  the  case  of  any 
title  which  had  not  been  carefully  investigated,  before  registra- 
tion, by  its  own  officials  ;  and,  as  this  process  involved  consider- 
able expense,  and  might  have  the  very  serious  result  to  the  land- 
owner of  advertising  the  defects  of  his  title,  it  is  not  surprising, 
perhaps,  that  few  landowners  consented  to  submit  to  it.  As  a 
matter  of  fact,  there  were,  in  the  'sixties,  probably  very  few 
important  estates  in  England  the  titles  to  which  were  technically 
perfect ;  and  so  notorious  was  this  fact,-  that  the  average  pur- 
chaser and  his  legal  advisers  allowed  their  rights  of  investigation 
to  be  cut  down  in  their  contracts  of  purchase,  and,  unless  they 
wished  to  be  off  their  bargain,  deliberately  shut  their  eyes 
to  remote  contingencies.  Landowners  were,  in  a  vague  way, 
aware  of  this ;  and,  not  unnaturally,  refused  to  incur  the  expense 
and  risk  of  a  scientific  investigation  of  their  titles,  for  the  prob- 
lematic advantage  of  obtaining  a  slightly  higher  price  when  they 
desired  to  sell.  A  little  use  was  made  of  the  Act  in  the  earlier 
years  of  its  existence ;  but  very  soon  the  Registry  Act  itself, 
as  well  as  the  Declaration  of  Title  Act  passed  in  the  same  year,^ 
became  a  dead  letter. 

In  the  year  1875,  however,  the  matter  was  again  taken  up 
Lord  by   Lord    Cairns ;     and   the   Land   Transfer    Act   of 

Cairns'  Act  i\i{it  year  came  into  existence.  In  some  ways  it 
was  a  great  improvement  upon  its  predecessor.      It  no  longer, 

'  25  &  26  Vict.  c.  53.  (The  Act  is  still  in  force  for  the  few  titles  remaining 
registered   under   it.) 

2  See  the  remarks  of  Lord  Hatherley  on  this  point,  and  the  rule  with  regard  to 
damages  for  breach  of  a  contract  to  sell  land  deduced  therefrom,  in  Bain  v.  Fothergill 
(1S74)  L.R.  7  H.L.  158.  3  25  &  26  Vict.  c.  67. 


-258    A   SHORT  HISTORY  OF  ENGLISH  LAW 

required  all  applicants  for  registration  to  submit  to  the  costly 
and  embarrassing  enquiry  necessary  to  establish  an  '  absolute  * 
title.  It  allowed  any  applicant  to  register  with  a  '  possessory  ' 
title  only,  i.e.  a  title  which  merely  asserted  that  the  registered 
proprietor  was  in  fact  in  possession  of  the  land  on  the  day  of 
registration,  under  Si  t\t\e  i^rimd  facie  vdXid.^  Naturally,  in  such 
cases,  the  State  took  no  reponsibility  in  respect  of  the  past 
history  of  the  title ;  but  it  did  guarantee  to  a  purchaser  that, 
in  respect  of  subsequent  transactions,  the  title  appearing  on  the 
Register  should  be  unimpeachable.^  Thus,  as  time  went  on, 
even  a  merely  '  possessory  '  title  would  acquire  a  tolerable  secur- 
ity ;  for  the  operation  of  the  Statutes  of  Limitation  would 
gradually  eliminate  the  possibility,  or  at  least  the  probability, 
of  any  claims  arising  prior  to  registration  being  really  enforced. 
Moreover,  even  if  the  applicant  for  registration  with  '  absolute  ' 
title  could  not  show  a  theoretically  perfect  title,  it  was  made 
possible  for  the  Registry  to  accept  his  title  as  '  qualified,'  i.e. 
subject  only  to  one  or  more  specified  blots,  as  to  the  importance 
of  which  a  purchaser  could  judge  for  himself.^ 

In  other  respects,  however,  the  Act  of  1875  was  as  unsatis- 
factory as  its  predecessor.  It  left  it  optional  with  the  existing 
owner  or  future  purchaser  of  land  to  register  or  not,  as  he  pleased ; 
and,  though  a  few  landowners  were  attracted  by  the  more 
elastic  provisions  of  the  statute,  yet,  after  the  first  few  years  of 
existence,  very  little  use  was  made  of  it.  Moreover,  the  scheme 
suffered  from  one  great  blot,  in  that  it  made  no  effort  to  com- 
pensate innocent  sufferers  who  might,  by  reason  of  abuse  of  the 
register,  or  inaccuracies  or  omissions  in  or  from  it,  incur  loss. 
It  might,  perhaps,  have  been  thought  that  this  defect  would  not 
have  weighed  much  with  persons  acute  enough  to  secure  the 
protection  of  the  Act  for  doubtful  titles ;  but  in  fact  it  tended  to 
make  the  scheme  unpopular. 

Accordingly,  registration  of  title  once  more  languished ; 
until  a  vigorous  reform  of  the  scheme  of  1875  was  set  on  foot 
and  carried  out,  mainly  through  the  efforts  of  Lord  Halsbury, 
the  third  Conservative  Lord  Chancellor  to  champion  the  system. 

By  Lord  Halsbury's  Land  Transfer  Act  of  1897,  or  rather 
by  the  Rules  made  under  the  almost  unprecedented  power  con- 

« Act  of  1875,  s.  6,  and  Land  Transfer  Rule,  1908,  Part  II. 
2  Act  of  1875,  s.  8.  3  Ibid.,  s.  9. 


CHANGES   IN   LAND   LAW  259 

ferred  upon  the  Lord  Chancellor  and  his  advisers  by  the 
provisions  of  the  two  statutes/  yet  a  fourth  kind  of 
Haisbury's  title  may  now  be  registered,  viz.  a  *  good  leasehold  ' 
title.-  A  '  good  leasehold '  title  is,  in  effect,  an  absolute 
title  to  the  interest  professed  to  have  been  created  by  a  lease,  if 
and  so  far  as  that  interest  was  validly  created.  In  other  words,, 
such  a  title  only  guarantees  the  purchaser  of  a  registered  lease 
against  defects  in  the  title  to  the  lease  itself,  not  against  defects  in 
the  title  of  the  lessor.^  The  Act  of  1897  also  provides  "*  a  fund  for 
compensating  persons  who  may  have  suffered  from  any  omission 
or  error  in  the  register,  or  from  the  procurement  of  any  registra- 
tion by  fraud  or  mistake ;  and,  if  the  only  reported  decision  ** 
on  that  section  is  not  very  favourable  to  such  claimants,  still  the 
compensation  provisions  of  the  Act  are  manifestly  necessary  to 
prevent  injustice. 

But  by  far  the  most  radical  change  effected  by  the  Act  of 
1897,  so  far  as  registration  of  title  is  concerned,  is  contained 
in  the  section^  which  provides  for  compulsory  registration. 
Compulsory  Tliis  change,  however,  which  takes  the  form  of  enacting 
Registration  ^}^g^^^  qj^  ^]^g  occasion  of  any  future  transfer  by  way  of 
sale,  the  title  to  the  land  shall  be  registered,  only  affects  certain 
special  areas ;  and  the  provisions  on  this  point  are  remarkable. 
The  Act  itself  does  not  create  any  '  compulsory  area  ' ;  but  gives 
the  Crown,  by  Order  in  Council,  power  to  do  so,  under  certain 
conditions.  In  the  first  instance,  the  power  of  the  Crown  was 
limited  only  by  the  fact,  that  the  provisions  of  the  first  Order 
to  be  made  should  not  include  more  than  one  administrative 
county,  and  by  the  fact  that  the  County  Council  of  the  area 
proposed  to  be  aft'ected  might,  by  a  majority  of  at  least  two- 
thirds  of  its  members,  veto  its  coming  into  operation.  After 
the  making  of  the  first  Order  under  the  Act,  however,  no  further 
Order  was  to  be  made  for  at  least  three  years  after  the  date 
of  the  first  Order,  and,  even  then,  not  until  the  County  Council 
of  the  area  contemplated  should  express  a  wish  for  the  intro- 
duction of  the  compulsory  system.  No  such  wish  has  been 
expressed  by  any  County  Council ;  and,  therefore,  outside  the 
County  of  London,  which  has  been  prescribed  as  a  compulsory 

1  Act  of  1875,  s.  Ill ;   Act  of  1897,  s.  22. 

2  Land  Transfer  Rules,  1903,  No.  52. 

3  76wi..,  No.  56.  6  a.  G.  v.  Odell  [1906]  2  Ch.  47. 

^Ss.  7,  21.  6S.  20. 


260    A  SHORT  HISTORY  OF  ENGLISH  LAW 

area  by  Orders  dated  between  1897  and  1903/  registration  of 
title  is  still  purely  voluntary,  and  is,  in  fact,  seldom  resorted  to. 

It  sliould  be  mentioned,  of  course,  that  the  avowed  objects 
of  the  Land  Transfer  Acts  include,  not  merely  the  guarantee  or 
security  of  titles,  but  the  diminution  of  the  expense  and  com- 
plexity of  conveyancing,  and  the  improvement  of  the  remedies 
of  creditors.  \Yith  the  former  object  in  view,  the  Acts  pro- 
vide that  no  '  abstract  of  title,'  other  than  the  land  certificate 
and  liberty  to  inspect  the  register,  can  be  demanded  by  a  pur- 
chaser in  respect  of  title  guaranteed  by  the  State ;  -  with  an 
eye  to  the  latter,  the  Act  of  1897,  by  vesting  all  the  heritable 
freeholds  of  a  deceased  person  in  his  personal  representatives,^ 
and  causing  all  dealings  between  them  and  the  beneficiaries, 
so  far  as  relates  to  registered  land,  to  be  entered  in  the  register, 
aims  at  providing  simple  and  speedy  remedies  for  the  recovery  of 
their  claims  by  creditors. 

It  is  notorious  that  the  policy  of  land  registration  has  given 
rise  to  acute  differences  of  opinion  in  England,  and  that  the 
system  is  still  on  its  trial.  On  the  one  hand,  it  is  said  that  the 
slight  increased  security  afforded  by  the  State  guarantee  is  more 
than  outweighed  by  the  limited  operation  of  the  scheme,  and 
by  the  fact  that,  as  the  beneficial  interest  in  registered  land,  even 
in  '  compulsory  areas,'  can  be  conveyed  by  unregistered  instru- 
ments,'' the  Acts  have  practically  substituted  a  double  for  the 
previous  single  title  to  each  ownership  within  those  areas.  On 
the  other,  it  is  urged,  that  there  is  a  systematic  conspiracy  of 
interests  to  stifle  and  misrepresent  the  scheme,  and  to  throw 
difficulties  in  the  way  of  its  execution,  and  that,  as  '  possessory  ' 
titles  virtually  become,  by  lapse  of  time,  absolute,  and  it  becomes 
possible  to  relax  the  severity  of  the  conditions  of  registration  with 
'  absolute  '  title,  the  drawbacks  inevitably  attendant  upon  the 
introduction  of  a  new  scheme  of  conveyancing  will  disappear. 
The  sul)ject  has  recently  been  under  the  consideration  of  a  Royal 
Commission,  whose  report  was  published  only  in  1911  ;^  and  the 

»  The  first  Order  (18th  July,  1908)  covered  the  whole  County  of  London;  but 
made  the  Order  applicable  to  different  pdrts  at  different  dates.  These  dates  were 
subser4uently  altered. 

'Act  of  1897,  8.  16.  'Act  of  1897,  ss.  1-4. 

*  The  only  legal  penalty  for  non-registration  in  a  compulsory  area  is  that  the 
legal  estate  does  not  pass  (Act  of  1897,  s.  20  (1)).  As  to  the  effect  of  unregistered 
dealings  with  registered  land,  see  Capital  and  Counties  Bank  v.  Rhodes  [1903] 
1  Ch.  631.  6  P.P.  1911,  Cd.  5483. 


CHANGES  IN  LAND  LAW  261 

author  must,  therefore,  leave  the  question,  with  the  bare  histori- 
cal observation  that,  but  for  the  passing  of  the  Statute  of  Uses,  it 
would  have  been  comparatively  easy,  at  any  time  in  the  sixteenth 
or  seventeenth  centuries,  to  substitute  for  the  somewhat  com- 
plicated scheme  of  registration  of  title,  a  much  simpler,  but 
sufficiently  effective  scheme  of  a  Register  of  Sasines,  or  seisins, 
i.e.  a  bare  register  of  the  changes  of  the  legal  estate.  It  may  be 
that  the  solution  of  the  problem  will  be  found  in  that  direction,  as 
it  has  been  in  Scotland. 

In  dismissing  the  subject  of  registration,  a  mere  reference  is 
all  that  can  be  allowed  for  that  branch  of  it  which  relates  to 

Registration  -^j^e  registration   of  certain   adverse    claims,   such  as 

of  Hostile        .  °  .  .  .  ' 

Claims  judgments,  recognizances,  annuities  or  rent-charges, 

deeds  of  arrangement  with  creditors,  and  other  possible  flaws 
in  title.  These  registries  are,  of  course,  on  the  lines  of  the  old 
Yorkshire  and  Middlesex  Registries,  with  which  they  are,  in 
fact,  incorporated  in  those  counties.  They  merely  aim  at  warn- 
ing the  purchaser  of  dangers,  without  in  any  way  guaranteeing 
their  extent  or  probability.  The  practice  commenced  with  the 
Statute  of  Frauds,  in  1677,^  and  was  embodied  in  numerous 
statutes  of  the  next  two  centuries.^  It  is  now  governed  by  the 
Land  Registration  and  Searches  Act,  1888,^  and  the  Land  Charges 
Act,  1900 ;  ^  the  chief  recent  change  being  the  provision^  that  no 
judgment  can  in  the  future  be  registered  without  leave  of  the 
Court,  or  have  any  effect  as  regards  the  land  of  the  debtor,  until 
a  writ  of  execution  upon  it  has  been  delivered  or  put  in  force, 
and  duly  registered.  This  provision  has,  perhaps  inadvertently, 
reopened  a  serious  question.  By  the  common  law,  a  personal 
representative  was  deemed  to  have  notice  of  all  unsatisfied 
judgments  obtained  against  his  deceased;  and  if  he  paid  lower 
claims  without  making  provision  for  them,  he  did  so  at  his  own 
peril.  It  was  to  remedy  this  danger,  among  others,  that  the 
statutory  provisions  for  the  registration  of  judgments  were  in- 
troduced. Now  that  judgments  can  no  longer  be  registered 
without  special  leave,  will  the  judgment  creditor's  preference 
still  remain  ?  And,  if  it  does,  how  is  the  personal  representative 
to  protect  himself? 

1  29  Car.  II,  c.  3,  s.  18. 

2  E.g.  4  &  5  W.  &  M.  (1692)  c.  20 ;  Judgments  Act,  1838,  s.  19 ;  Judgments  Act 
1864,  ss.  1-3. 

'  51  &  52  Vict.  c.  51,  ss.  5,  6.  ^  63  &  64  Vict.  c.  26.  ^  Ibid.,  s.  2. 


262    A   SHORT   HISTORY   OF   ENGLISH   LAW 

This  chapter  cannot  conclude  without  at  least  a  brief  reference 
to  one  of  the  most  important  reforms  in  land  law  effected  during 
Enclosures  the  latter  half  of  the  nineteenth  century,  viz.  the 
restriction  of  the  right  to  enclose  common  fields  and  manorial 
wastes.  In  form  this  was  a  change  in  procedure ;  in  substance 
it  effected  a  profound  revolution  in  the  powers  of  landowners. 

It  has  been  pointed  out,  in  an  earlier  chapter,^  that  the  typical 
manor  of  the  later  Middle  Ages  was  formed  by  the  super-position 
of  a  '  lord  '  holding  by  feudal  tenure  upon  a  village  which  culti- 
vated its  lands  under  a  communal  system  of  immemorial  an- 
tiquity. To  this  communal  system  the  feudal  principle  of  tenure 
was  also  applied,  though  with  indifferent  success,  by  the  Norman 
lawyers;  so  that,  in  theory,  the  villagers,  whose  names  and 
holdings  were  recorded  on  the  manorial  rolls,  were  technically 
described  as  '  holding  of  '  the  lord,  though  '  according  to  the 
custom  of  the  manor.' 

It  was  natural  that,  as  population  increased,  and  tenants  became 
more  plentiful,  the  manorial  lords  should  desire  the  power  of 
taking  in  more  land  from  the  waste  which  was  a  normal  feature  of 
every  village ;  and  equally  natural  that  the  villagers,  who  had, 
from  time  immemorial,  treated  the  waste  as  a  treasure-house  from 
which  valuable  stores  of  grass,  faggots,  acorns,  gravel,  peat, 
water,  and  the  like,  could  be  drawn  to  supplement  their  holdings, 
should  resent  any  claim  which  threatened  to  trench  upon  their 
store.  Traces  of  the  struggle  are  visible  as  early  as  the  thirteenth 
Statute  of  century  ;  when,  by  the  Statute  of  IVIerton,"  *  magnates ' 
Merton  -^-j^q  \^q^^  '  enfeoffed  their  knights  and  freeholders  of 

small  tenements  in  their  great  manors'  were  exonerated  from 
actions  brought  by  such  tenants  against  them  (the  magnates) 
for  '  making  their  profit  of  the  residue  of  their  manors,  to  wit 
of  wastes,  woods,  and  pastures  ' ;  i)rovided  that  the  complain- 
ants were  left  '  so  much  pasture  as  should  suffice  for  their  tene- 
ments.' 

This  provision,  which  was  extended  by  the  Statute  of  West- 
minster the  Second  ^  to  cover  the  case  of  persons  claiming  common 
of  pasture  by  express  grant,  seems  to  have  been  the  foundation 
of  the  common  law  rule,  that,  in  the  absence  of  proof  to  the  con- 
trary, the  soil  of  the  manorial  waste,  or  '  common,'  is  vested  in 
the  lord.     The  immense  importance  of  this  rule  will  appear  later  ; 

'  ArUe,  pp.  27,  28.         *  20  Hen.  Ill  (1235)  c.  4.         »  13  Edw.  I  (1285)  c.  46. 


CHANGES  IN  LAND  LAW  263 

here  it  is  sufficient  to  point  out  that  there  is  nothing  in  the  words 
of  the  statutes  to  justify  it,  and  that  nothing  is  said  in  either 
statute  about  the  rights  of  copyholders,  which  depend,  and  have 
all  along  depended,  not  on  feoffment  or  grant,  but  on  immemorial 
custom. 

After  the  thirteenth  century,  the  question  seems  to  have 
slept  until  the  sixteenth,  when  the  growth  of  a  reform  movement 
^"^}  in    favour    of    '  several '   or   enclosed    husbandry,   as 

Enclosure  ,  n   i  i  ^     i 

Movement  opposed  to  common,  open-neld,  or  champaign 
farming,^  resulted  in  the  wholesale  enclosure  of  common  fields, 
especially  in  the  West  of  England,  and  to  the  consequent  riots 
in  the  time  of  the  Protector  Somerset,  This  movement,  it 
will  be  noticed,  was  concerned  mainly,  if  not  solely,  with  the 
methods,  not  with  the  matter,  of  agriculture ;  and  the  manorial 
*  waste,'  or  common,  continued  to  be  a  normal  feature  of  the 
English  countryside  for  two  centuries  more. 

Then,  indeed,  with  the  genuine  prosperity  of  agriculture 
in  the  eighteenth  century  and  the  artificial  prosperity  pro- 
Second  duced  bv  the  French  wars  and  the  Corn  Laws  in  the 

Enclosure  ,  ."  i  i         <  i 

Movement  early  nineteenth,  the  enclosure  movement  took 
on  a  new  and  acuter  phase.  This  time  the  manorial  lords  aimed, 
not  merely  at  securing  a  free  hand  for  their  improvements  in  the 
soil  already  under  the  plough,  but  a  largely  increased  area  of 
private  land,  which  they  could  either  use  for  agriculture,  or  sell 
or  lease  for  building  or  mining  purposes.  Then  was  seen  the 
enormous  importance  of  the  rule  deduced  from  the  Statute  of 
Merton.  For,  with  mineral  discoveries  and  the  rapid  growth  of 
manufacturing  towns,  the  value  of  some  of  the  manorial  wastes 
rose  to  fabulous  heights ;  and,  after  the  commoners  or  tenants 
had  been  compensated  on  the  basis  of  the  value  of  their  ancient 
rights,  the  whole  of  the  residue  went  into  the  pockets  of  the  lords. 
One  circumstance  alone  rendered  this  process  of  appropriation 
difficult.  Owing  to  the  immutable  character  of  manorial  custom, 
Inciosure  ^^^^  'th©  certainty  that,  among  the  many  persons 
^'^^^  claiming  common  rights  in  a  waste,  there  would  be 

some  whose  title  was  imperfect  or  doubtful,  it  was  practically 
necessary,  in  almost  every  case,  to  obtain  a  private  Act  of  Parlia- 

^  The  academic  champion  of  the  movement  was  Thomas  Tusser,  whose  rhymed 
tract  Five  Hundred  Points  of  Husbandry  (ed.  Mavor,  1812)  is  an  amusing  and  racy, 
but  somewhat  one-sided,  picture  of  the  agricultural  life  of  his  day. 


264    A  SHORT  HISTORY  OF  ENGLISH   LAW 

ment  to  effect  a  safe  enclosure.  But  Parliament,  in  the  eigh- 
teenth century  largely  composed  of  landowners,  was  anxious  to 
facilitate  the  process;  and  Inclosure  Acts  passed  with  extreme 
rapidity.  ]Moreover,  in  the  year  1801,  a  statute  known  as  the 
Inclosure  (Consolidation)  Act^  established  a  common  form  which 
could  be  incorporated  by  reference  into  any  private  Inclosure 
Actj  and  thus  still  further  simplified  the  process.  Finally,  in  the 
year  1845,  Parliament  determined  to  dispense  with  the  necessity 
of  special  legislation  altogether.  By  the  Inclosure  Act  of  that 
Inclosure  ycar^  was  set  up  a  Board  of  Inclosure  Commissioners, 
Commis-  who  wcrc  entitled  to  issue  provisional  schemes  for  the 
carrying  out  of  enclosures.  These  schemes  were  then 
to  be  embodied  in  Provisional  Orders,  which,  in  the  form  of  a 
Schedule  to  a  short  annual  Act,  should  go,  more  or  less  auto- 
matically, through  Parliament. 

Such  vigorous   progress  was  made  under  these  encouraging 
auspices,  that  in  the  early  'sixties,  England  suddenly  awoke  to 
the  fact  that  she  was  being  deprived  of  one  of  her  chief  national 
assets  and  threatened  with  asphyxiation   in   her  rapidly  grow- 
ing towns.     The  Commons  Preservation  Society  was 

Commons  i    •        i  c      i       r»  c      • 

Preservation  formed  ui  the  year  1865  ;    and  one  of  the  first  fruits 
ocie  y  ^^  .^^  vigorous  propaganda  was  the  Metropolis  (Com- 

mons) Act  of  the  following  year,^  which  virtually  put  an  end 
to  enclosures  within  the  metropolitan  area,  and,  incidentally, 
saved  for  London  such  priceless  possessions  as  Wimbledon  Com- 
mon and  Hampstead  Heath.  The  policy  of  that  Act  was  to 
favour  dedication  to  public  uses  at  the  expense  of  enclosure.  It 
did  not,  in  form,  repudiate  the  historical  claim  of  the  manorial 
lords ;  but  it  facilitated  a  compromise  for  the  benefit  of  the 
public. 

Encouraged  by  the  success  of  its  first  attempt,  the  Commons 
Preservation  Society  pushed  its  campaign  into  the  country ; 
and,  ten  years  later,  secured  the  passing  of  the  Commons  Act, 
ISVO,"*  which  virtually  did  for  the  provinces  what  the  Act  of  1806 
had  done  for  London.  A  most  important  clause  ^  declared 
any  encroachment  on  a  defined  village  green  to  be  a  public 
nuisance,  and  authorized  proceedings  to  be  taken  in  respect 
of  it,  not  merely  before  the  magistrates,  who  were  supposed  to 

"41    Geo.  Ill,  c.  109.  » 8  «fe  9  Vict.  c.  118.  «  29  &  30  Vict.  c.  122. 

*  39  «fe  40  Vict.  c.  56.  '  §_  29. 


CHANGES  IN  LAND  LAW  2Q5 

be  far  too  lenient  towards  offences  of  that  kind,  but  before  a 
county  court  judge. ^  Even  the  individual  right  of  isolated 
enclosure  cannot  now  be  exercised  without  the  approval  of  the 
Board  of  Agriculture ;  ^  and  enclosure  schemes  have  virtually 
ceased  to  be  practicable.  On  the  other  hand,  considerable  prog- 
ress has  been  made  with  the  principle  of  securing  open  spaces 
for  the  purposes  of  public  recreation ;  ^  and  the  latest  general 
enactment  on  the  subject,  the  Commons  Act,  1899,  practically 
authorizes  any  District  Council,  urban  or  rural,  with  the 
approval  of  the  Board  of  Agriculture,  to  make  a  scheme  for 
regulating  and  managing  any  common  within  its  district.* 

^  S.  30.  -  Law  of  Commons  Amendment  Act,  1893,  s.  2. 

'  The  story  of  these  successful  efforts  may  be  read  in  the  volume  recently  published 
by  Lord  Eversley,  entitled  Commons,  Forests,  and  Footpaths  (Cassell,  1910). 
*  62  &  63  Vict.  c.  30,  s.  1. 


CHAPTER   XVI 

NEW  FORMS  OF  PERSONAL  PROPERTY 

IT  has  been  previously  remarked  ^  that,  owing  to  the  ap- 
parently arbitrary  decision  of  the  old  Common  Law  Courts 
not  to  allow  a  '  real '  or  proprietary  action  for  the  re- 
covery of  chattels,  there  has  never  been  very  much  of  what 
may  be  called  '  objective  '  law  of  chattels  corporeal  in  England. 
Whether  the  apparently  arbitrary  refusal  to  which  allusion  has 
been  made  was  really  due  to  a  belief  in  the  relative  unimpor- 
tance of  chattels  as  compared  with  land,  or  to  that  excessive 
respect  for  possession  which  almost  refused  a  recognition  to 
property  unaccompanied  by  possession,  or  to  the  existence  of 
ancient  remedies  deemed  to  be  adequate  for  the  protection  of 
chattel  interests,^  or  to  some  other  cause,  is  a  fascinating  prob- 
lem ;  but  it  cannot  be  further  pursued  here.  It  is  sufficient  to 
say  that,  historically  speaking,  the  law  of  chattels  corporeal 
in  England  was  developed  first  through  the  Law  of  Theft,  later, 
as  we  have  seen,^  through  the  Law  of  Tort,  and,  finally,  as  will 
be  explained  in  the  succeeding  chapter,^  through  the  Law  of 
Contract.  Such  slender  traces  of  a  Law  of  Chattels  Corporeal 
as  remain  after  these  large  branches  have  been  shorn  away,  will 
be  found  in  connection  with  the  Law  of  Succession,  and  the 
small  if  important  part  of  the  law  which  deals  with  '  reputed 
ownership,'  i.e.  ownership  severed  from  possession.  A  few 
words  on  these  two  heads  must  suffice  for  the  subject  of  chattels 
corporeal  in  this  period ;  and  we  must  then  turn  to  the  striking 
development  of  the  law  of  chattels  incorporeal,  or  '  choses  in 
action.' 

The  subject  of  succession  on  intestacy  was  the  first  aspect 
of  the  Law  of  Succession  to  receive  attention  during  the  period 
Intestate  HOW  Under  review.  As  we  have  seen,^  it  was  in 
Succession  ^^j^  auomalous  position.  Properly  speaking,  the 
ecclesiastical  courts  ought  to  have  followed  the  clearly  defined 

*  Ante,  p.  123.  2  ggg^  for  suggestions  on  this  point,  ante,  p.  59. 

3  Ante,  pp.  141,  142.    .  *  Post,  pp.  300-303.  '  Ante,  pp.  60,  61. 


NEW  FORMS   OF   PERSONAL   PROPERTY     267 

rules  of  Roman  Law  on  the  subject.  As  a  matter  of  fact,  they 
largely  followed  vague  and  fragmentary  local  customs ;  with  the 
inevitable  result,  that  a  good  deal  of  irregularit}^  and  plunder- 
ing went  on.  Where  the  case  was  one  of  pure  intestacy,  the 
administrator  was,  no  doubt,  compelled  by  the  ecclesiastical 
court  to  enter  into  a  bond  to  distribute  the  estate  among  the 
next  of  kin.^  But  there  was  very  grave  doubt  whether  such  a 
bond  was  valid  when  the  administrator  claimed  the  grant  by 
virtue  of  a  statutory  right,"  as,  for  example,  under  the  21  Hen. 
VIII  (1529)  c.  5,  which  ^  compelled  the  Ordinary  to  grant  ad- 
ministration to  the  widow  or  next  of  kin  of  a  deceased  who 
left  no  will,  or  whose  executors  renounced.  And  when  it  was 
merely  a  question  of  intestacy  as  to  a  residue,  it  is  to  be  feared 
that  the  all-powerful  executor  generally  obtained  the  lion's 
share  of  it. 

Very  soon  after  the  Restoration,  however,  an  important 
statute  was  passed  with  the  object  of  controlling  the  action  of 
statutes  administrators,  and  settling  the  law  of  intestate 
tion  succession.     This    was    the    Statute    of  Distribution 

of  1670,^  which  required  all  administrators  to  enter  into  bonds 
before  taking  up  their  duties,  and  subjected  them  to  a  process 
of  account  in  the  ecclesiastical  courts.^  It  then  settled  the 
order  of  succession,^  by  providing  that  the  widow  of  the  intestate 
should  be  entitled,  after  payment  of  the  intestate's  debts,  to 
one-third  of  the  surplus,  if  the  intestate  left  children  or  remoter 
issue ;  to  one-half,  if  no  issue  survived  the  intestate.  After 
the  widow  is  provided  for,  the  residue  (or  the  whole  estate,  if 
there  is  no  widow)  is  to  be  divided  equally  among  the  intestate's 
children ;  the  representatives  of  deceased  children  standing 
in  their  parents'  shoes,  but  all  issue  (except  the  heir-at-law 
in  respect  of  land)  bringing  into  '  hotchpot,'  or  account,  all 
advances  made  to  them  by  the  intestate  during  his  lifetime.^ 
If  there  are  no  issue  who  survive  the  intestate,  then  the  whole 
estate  (or  the  half  if  there  is  a  widow)  is  to  be  divided  equally 
among  the  blood  relations  of  the  intestate  in  the  nearest  degree ; 

'  Godolphin,  Orphan's  Legacy  (ed.  1685)  255. 
*  Davis  V.  Matthews  (1655)  Styles,  455. 

3S.  3(6).  ^  Ibid.,  S3.  2-4. 

<  22  &  23  Car.  II,  c.  10.  « Ibid.,  ss.  5-7. 

'  Though  the  wording  of  the  section  (3)  is  quite  general,  it  is  probable  that  the 
'hotchpot'  clause  only  applies  to  the  distribution  of  the  estate  of  a  father. 


268    A   SHORT  HISTORY  OF  ENGLISH  LAW 

deceased  brothers  and  sisters,  but  no  other  collaterals,  being 
represented  by  their  surviving  issue.  Finally,^  the  Act  lays 
it  down  that,  for  the  protection  of  creditors,  no  distribution  is 
to  be  made  for  at  least  a  year  after  the  intestate's  death ;  and, 
even  then,  that  the  beneficiaries  receiving  shares  shall  give 
bonds  to  refund  in  the  event  of  new  debts  appearing.^ 

The  Act  of  1670,  which  was  at  first  only  temporary,  was 
made  perpetual  in  1685,^  in  which  same  year,  however,  it  was 
amended  by  a  provision"*  that,  in  the  event  of  no  issue  of  the 
deceased  surviving  him,  his  personalty,  subject  to  the  claims  of 
his  widow, ^  if  any,  should  be  shared  equally  between  his  sur- 
viving mother  and  his  brother  and  sisters  (including  their 
representatives)  ;  though,  of  course,  the  mother  is  in  a  nearer 
degree  to  the  intestate  than  the  brothers  and  sisters.^  Thus 
amended,  the  statute  of  1670  has  settled  the  modern  law  of 
intestate  succession ;  but  it  is  noteworthy  that  it  did  not  come 
into  universal  operation  throughout  England  for  nearly  two 
hundred  years.  For  the  Act  itself  expressly  disclaimed^  all 
interference  with  the  special  customs  of  London  and  the  Pro- 
vince of  York.  It  was  accordingly  deemed  necessary,  in  1692, 
to  pass  a  special  statute^  enabling  the  inhabitants  of  the  Province 
of  York  (other  than  freemen  of  York  and  Chester),  and  in  1696 
another  enabling  the  inhabitants  of  Wales,^  to  dispose  of  their 
personalty  freely  by  will,  notwithstanding  local  claims  of  legitim  ; 
and  this  liberty  was  extended  in  1703,^''  at  their  own  request, 
to  the  freemen  of  York.  Finally,  by  two  sections  of  an  Act 
dealing  with  the  general  government  of  London,  passed  in  the 
year  1724,^^  free  liberty  of  testation  was  given  to  the  citizens 
of  the  capital.  But,  so  far  as  intestate  succession  was  concerned, 
the  City  of  London  and  the  Province  of  York  remained  governed 


'  22  &  23  Car.  II,  c.  10,  s.  8. 

'  Presumably  also  the  next  of  kin  would  have  to  refund  in  the  event  of  a  will 
being  discovered. 

3  1  Jac.  II,  c.  17,  s.  5.  "  Ibid.,  s.  7. 

'  It  was  expressly  ruled  in  Kcylway  v.  Keylway  (1726)  2  P.  Wms.  344,  that  the 
section  held  good  for  the  residue,  even  if  the  intestate  left  a  widow. 

*  It  seems  clear  from  the  wording  of  s.  7  of  the  Act  of  1685,  that  the  widow  of  a 
deceased  child  can  claim  her  part  of  her  deceased  husband's  share  in  the  intestate's 
personalty. 

'  S.  4.  » 8  &  9  Will.  Ill,  c.  38. 

«  4  W.  &  M.  c.  2.  "'2  «fe  3  Anne,  c.  5. 

"11  Geo.  I,  c.  18,  ss.  17-18.  (The restriction  had  only  applied  to  'freemen,'  not 
to  mere  residents.) 


NEW  FORMS  OF  PERSONAL  PROPERTY    269 

by  their  own  local  rules  until  the  year  1856/  the  eve  of  the  trans- 
fer of  testamentary  jurisdiction  to  the  new  Court  of  Probate. 
IMoreover,  a  statute  of  the  year  1890-  gives  a  preferential  and 
additional  claim  of  £500,  payable  rateably  out  of  realty  and 
personalty,  to  the  widow  of  an  intestate  who  leaves  no  issue. 

On  the  other  side  of  succession,  viz.  the  making  of  wills, 
the  period  of  the  Restoration  was  also  important.  For  the 
Wills  of         ecclesiastical  courts,  though  again  they  should  have 

ersona^ty  followed  the  severe  rules  of  Roman  Law,  made, 
apparently,  no  stipulations  whatever  on  the  subject  of  the 
form  of  wills  ;^  the  only  formal  requirement  being  that  of  writ- 
ing introduced  by  the  Wills  Act  of  1540,^  which  only  applied 
to  devises  of  land.  But  the  Statute  of  Frauds,  which,  as  has 
already  been  mentioned,''  added,  for  wills  of  land,  the  further 
requirement  of  three  witnesses,  did  something,  though  not 
much,  to  amend  the  scandalous  laxity  permitted  by  the  eccle- 
siastical courts  in  cases  of  personalty.  Parliament,  unfortu- 
nately, did  not  venture  to  abolish  entirely  the  '  nuncupative,' 
or  verbal  will ;  but,  if  the  value  of  the  estate  exceeded  £30,  it 
required  that  it  should  be  attested  by  three  witnesses,  whose 
testimony  could  not  be  received  after  six  months  from  the 
making  of  the  will,  unless  it  had  been  committed  to  writing 
within  six  days  from  that  event. ^  Moreover,  the  statute  pro- 
vided that  no  written  will  of  personalty  should  be  revoked  or 
altered  by  word  of  mouth ;  unless  the  words  were  committed  to 
writing  in  the  testator's  lifetime,  and  approved  by  him  in  the 
presence  of  three  witnesses.'^ 

On  the  other  hand,  though  the  Church  courts  were  criminally 
lax  in  the  matter  of  testamentary  forms,  they  positively  dis- 
Exciusion  of  couragcd   the   employment   of   witnesses,    by   laying 

estimony  ^Jqwu  all  sorts  of  restrictions  with  regard  to  their 
impartiality,  or  '  interest.'  The  ecclesiastical  tribunals  refused 
to  accept,  in  proof  of  a  will,  the  testimony  of  any  person  who 
might  be  interested,  directly  or  indirectly,  in  its  establishment. 
Thus  no  executor,  legatee,  or  even  creditor  of  the  deceased,^ 

1  19  &  20  Vict.  c.  94. 

253  &  54  Vict.  c.  29  (Intestates'  Estates  Act,  1890).     • 
^  Godolphin,  Orphan's  Legacy,  p.  9,  ad  fin. 
^32  Hen.  VIII,  c.  1,  s.   1.  ^  Ante,  p.  239. 

«  29  Car.  II,  c.  3,  sa.  19,  20.  '  Ibid.,  s.  22. 

^  The  objection  to  creditors  only  applied  where  the  testator  had,  by  his  will, 
charged  his  lands  with  payment  of  their  debts,  and  thus  improved  their  position. 


270    A  SHORT  HISTORY  OF  ENGLISH  LAW 

could  be  admitted  as  a  witness  of  his  will ;  and,  unfortunately^ 
these  absurd  exclusions  were  expressly  made  to  apply  to  the 
witnesses  required  by  the  Statute  of  Frauds  for  the  proof  of 
a  nuncupative  will.^  A  useful  statute  of  the  year  1752,^  however, 
did  much  towards  the  alleviation  of  the  position,  by  admitting 
the  testimony  of  a  creditor,  even  though  the  will  contained 
a  charge  of  debts  on  land,  and  of  all  beneficiaries  ;  with  a  proviso 
that  no  beneficiary  who  was  also  a  witness  should  be  able  to 
take  any  benefit  under  the  will,  except  that  legatees  who  had 
actually  been  paid  their  legacies,  should  not  be  deprived  of 
them,  even  though  called  upon  to  give  evidence,  in  the  event 
of  the  will  being  upset.  But  the  common  sense  rule,  that  all 
testimony  shall  be  admitted  for  what  it  is  worth,  was  not  finally 
Wills  Act  adopted  till  the  passing  of  the  Wills  Act  of  1837.^ 
1837  This  last  statute,   in  addition  to  requiring  all  wills 

(other  than  those  of  soldiers  and  sailors  on  active  service)^  to 
be  made  in  writing  signed  by  the  testator  in  the  presence  of  two 
witnesses,^  expressly  enacted  that  no  will  should  be  invalidated 
on  the  ground  of  incompetency  of  any  witness,  and  that 
beneficiaries,  creditors,  and  executors  should  be  admitted  to 
prove  the  execution  of  a  will ;  ^  the  penalty  imposed  by  the 
statute  of  1752,  however,  remaining  upon  the  beneficiaries, 
including  the  husband  or  wife  of  any  witness.^  The  Wills  Act 
of  1837  also  formulated  the  rules  as  to  the  revocation  ^and  revivaP 
of  wills ;  provided  that  a  general  devise  or  bequest,  if  otherwise 
appropriately  worded,  should  pass  not  merely  property  belong- 
ing to  the  testator  at  his  decease,  but  property  over  which  he 
has  a  general  power  of  appointment ;  ^^  and  abolished  the  old 
perverse  rule,  that  a  gift  over  after  the  death  of  a  person  '  with- 
out issue  '  must  be  construed,  in  the  absence  of  counter-expres- 
sions, as  applying  to  an  indefinite  failure  of  issue,  not  merely 
a  failure  at  the  death  of  the  person  named."  Finally,  the  Act 
prevents  a  '  lapse  '  or  failure  of  a  gift,  whether  of  real  or  per- 
sonal estate,  by  the  death  of  the  beneficiary  in  the  lifetime  of 
the  testator,  if  the  intended  beneficiary  is  a  descendant  of  the 

^  4  -\nne  (1705)  c.  16,  s.  14  ('Act  for  the  Amondnient  of  the  Law')- 
2  25  Geo.  II,  c.  6.  ^7   ^yjn    jy  &   1   Viet.  c.  26. 

*  Ss.  11,  12.     WilLs  of  these  persons  are  now  regulated  by  a  statute  of  the  yc;ir 
1865,  the  Navy  and  Marines  (Wills)  Act  (28  &  29  Vict.  c.  72). 

*  S.  9.      (The  requirement  attaches  also  to  the  exercise  of  a  testamentary  power 
of  appointment  —  s.   10.) 

«S8.  14-17.  'S.  15.  8  Ss.  18-21.  ^S.  22.  "  S.  27.  "S.  29. 


NEW  FORMS   OF  PERSONAL  PROPERTY    271 

testator  and  has  left  issue  who  have  in  fact  survived  the  testator.^ 
In  such  a  case,  the  gift  goes  as  though  the  beneficiary  had  sur- 
vived the  testator,   and  died  immediately  after. 

The  Wills  Act  of  1837  has  been  explained  in  one  particular 
(the  position  of  the  testator's  signature)  by  a  statute  of  the 
year  1852 ;  ^  in  other  respects  it  is  practically  intact.  But 
an  important  statute  of  the  year  1861,^  commonl}^  known  as 
Lord  Kingsdown's  Act,  has  mitigated  the  harshness  of  the  rule 
of  private  international  law  which  requires  wills  of  movables 
to  be  executed  in  accordance  with  the  formalities  prescribed  by 
the  law  of  the  testator's  domicile  at  the  time  of  his  death.'' 
Most  of  this  Act  only  applies  to  British  subjects.  An  attempt 
was  made  in  the  same  year  to  establish  with  foreign  States 
reciprocal  agreements  as  to  the  requisites  of  domicile  for  testa- 
mentary purposes ;  but  the  Act  embodying  this  attempt  ^  has 
remained  a  dead  letter,  no  convention  under  it  having  been  made. 

The  other  change  in  the  law  of  chattels  corporeal  which 
deserves  a  word  of  notice,  is  concerned  with  '  reputed  ownership.' 
In  spite  of  the  fact  that  bailments  of  all  kinds  were  well  known 
in  the  Middle  Ages,  and,  as  we  have  seen,^  were  early  recog- 
nized by  English  law,  that  law  always  looked  with  suspicion 
upon  any  attempt  to  separate  possession  and  ownership.  Thus, 
Transfer  soon  after  the  famous  statute  of  157F  had  been 
Possession  passed  to  invalidate  dispositions  made  with  intent 
to  defraud  creditors,  it  was  laid  down,  in  Twyne's  Case,^  that 
retaining  of  possession  by  a  person  who  conveyed  away  the 
property  in  goods  was  one  of  the  '  badges  of  fraud '  which 
would  go  far  to  upset  the  disposition.  In  1623,  one  of  the 
earliest  Bankruptcy  Acts^  laid  it  down,  that  goods  in  the  pos- 

'  S.  33.  (S.  32  makes  a  corresponding  provision  in  the  case  of  any  devise  of  an 
estate  tail,  where  the  issue  in  tail  survive  the  testator.) 

2  15  &  16  Vict.  0.  24  ('Wills  Act  Amendment  Act')- 

3  24  &  25  Vict.  c.   114   ("Wills  Act,   1861'). 

^  The  will  of  a  British  subject  is  good  as  to  form,  if  it  is  made  according  to  the 
forms  of  the  law  of  the  place  (a)  where  it  is  made,  or  (b)  of  the  testator's  domicile  at 
the  time  of  making  the  will,  or  (c)  of  the  testator's  domicile  of  origin,  being  in  the 
British  Dominions  (s.  1).  If  the  will  is  made  in  the  United  Kingdom,  it  may  be 
made  according  to  the  law  of  the  place  where  it  is  made  (s.  2).  And  no  subsequent 
change  of  domicile  by  the  testator  affects  a  will  (s.  3). 

5  24  &  25  Vict.  c.  121.  ''  13  Eliz.  c.  5. 

6  Ante,  p.  1.34.  «  (leoi)  3  Rep. 

^21  Jac.  I,  c.  19,  s.  11.  (According  to  Lord  Hardwicke  in  Bourne  v.  Dodson 
(1740)  1  Atk.,  at  p.  157,  this  section  was  not  acted  upon  until  the  unreported  case  of 
Stephens  v.  Sole  in  1736.) 


272    A  SHORT  HISTORY  OF  ENGLISH  LAW 

session,    order,    and   disposition   of   the   bankrupt,    as   reputed 

owner,  with  the  consent  of  the  true  owner  thereof,  at  the  time 

of  the  adjudication  in  bankruptcy,  should  pass  to  the  bankrupt's 

creditors ;    and  this  provision,  in  a  sHghtly  modified  form,^  has 

appeared  in  every   succeeding   Bankruptcy  Act. 

But    the   most   striking   development   of    the   principle :    en 

jait  de  meuhles,  possession  vaut  litre,  appears  in  the  successive 

„...     ,  „  ,    Bills   of   Sale   Acts   passed   since   the   middle   of  the 
Bills  of  Sale      .  t  •  p    i      p  i  i   i- 

nineteenth  century.     In  spite  or  the  tact  that  delivery, 

or  transfer  of  possession,  was  long  considered  by  the  common 

law  as  the  only  satisfactory  evidence  of  transfer  of  chattels 

corporeal,  the  doctrine  was  admitted  in  theory,  before  the  end 

of  the  sixteenth  century,^  that  the  property  in  goods  would  pass 

by  assignment  under  seal,  without  delivery.     Here  again,  the 

transaction   was,   after   1571,   always   subject   to   impeachment 

under  the  statute  of  that  year ;  ^   but  if  in  fact  it  was  made  bond 

fide,  either  as  an  absolute  transfer  or  as  a  mortgage,  it  would 

be  good,  at  any  rate  as  against  individual  creditors. 

In  the  year  1854,  however,  the  evils  attendant  on  this  state 

of  the  law  evoked  a  statute  ^  designed,  somewhat  on  the  lines 

of  the  earlier  Land  Registry  Acts,  to  enable  any  person  who 

might   be   thinking   of   giving   credit   to   another,   to   ascertain 

whether  the  latter  was  really  owner  of   his  stock-in-trade  of 

furniture.     This  statute   provided,^   that  every  bill   of   sale  or 

document     (other    than    marriage    settlements    and    ordinary 

commercial   documents  of  title)    transferring  the  property   in, 

or  authorizing  a  stranger  to  take  possession  of,  goods  in  the 

*  possession  or  apparent  possession '  ^  of  the  transferor  or  licensor 

as  security  for  debt,  should  be  void  against  the  assignees  in 

bankruptcy  and  the  execution  creditors  of  the  apparent  owner 

of  the  goods,  unless  it,  or  a  true  copy  of  it,  with  an  affidavit 

as  to  the  time  of  its  execution,  were  filed  with  an  official  of  the 

Court   of   Queen's    Bench,    within   twenty-one   days    after   the 

^  The  later  provisions,  e.g.  Acts  of  1869  (s.  15  (5))  and  1883  (s.  44  (iii))  are  con- 
fined to  goods  apparently  owned  by  the  bankrupt  in  the  way  of  his  trade. 

^  See  Butler's  and  Baker's  Case  (1591)  3  Rep.,  at  26b  (2d  resolution  of  the 
Court). 

'  13  Eliz.  c.  5.  Apparently,  it  was  immaterial  whether  or  not  the  transaction 
■was  for  value. 

M7  &  18  Vict.  c.  36.  *  S.  1. 

*  The  writer  has  been  unable  to  discover  what  'apparent  possession'  may  be. 
'Apparent  ownership'  has  a  meaning  ;  but  what  is  'apparent  possession,'  as  distinct 
from  any  other  '  possession '  ? 


NEW  FORMS  OF  PERSONAL  PROPERTY    273 

making.  The  officer  of  the  Court  was  to  keep  a  book  ^  in  which 
particulars  of  all  such  documents  were  to  be  entered ;  and  this 
book  was  to  be  open  to  inspection  at  any  time,  on  payment  of 
a  small  fee. 

The  Act  of  1854  was  considerably  amended  in  detail,  and 
rendered  more  efficacious,  by  a  statute  of  the  year  1866,^  which, 
Modern         among    other  things,    required    renewal  of  registra- 

Cills  of  ,  „  nil 

Sale  Acts  tiou  every  nve  years.  But  both  statutes  were  re- 
pealed and  replaced  by  the  Bills  of  Sale  Act,  1878,^  which 
has  itself  been  severely  amended  by  the  Bills  of  Sale  Act  (1878) 
Amendment  Act,  1882.^  The  relations  to  one  another  of  these 
last  two  statutes  are  not  very  clear ;  but  the  short  result  appears 
to  be,  that  bills  of  sale  given  by  way  of  absolute  transfer  are 
governed  only  by  the  provisions  of  the  former ;  ^  whilst  bills  of 
sale  given  by  way  of  security  are  governed  mainly  by  the  latter, 
but  also  by  such  provisions  of  the  Act  of  1878  as  have  not,  in 
the  case  of  bills  given  by  way  of  security,  been  repealed  by  the 
later  statute. 

The  chief  differences  between  the  two  classes  of  documents 
are  as  follows.  While  each  must  contain  a  true  statement 
of  the  consideration,  and  be  registered  within  seven  days  of 
execution,  and  re-registered  every  five  years, ^  the  attestation 
of  an  absolute  bill  of  sale  must  be  by  a  solicitor,  who  must 
state  that  he  has  explained  the  effect  to  his  client,^  but  the 
bill  of  sale  by  way  of  security  need  only  be  attested  by  one  cred- 
ible witness,  not  a  party. ^  On  the  other  hand,  the  security 
bill  must  be  in  the  precise  form  prescribed  in  the  Act  of  1882, 
which  comprises  a  schedule  of  the  goods  included  in  it ;  ^  and, 
in  the  case  of  the  security  bill,  also,  the  creditor  can  only  seize 
the  goods  on  the  happening  of  one  of  the  five  events  specified 
in  the  Act  of  1882.^°  Finally,  the  security  bill  is  totally  void 
as  a  bill  of  sale  if  it  is  given  in  consideration  of  less  than  £30, 
or  if  it  fails  to  comply  with  the  requirements  of  the  Act  of  1882  ^^ 
(except  in  the  matter  of  the  schedule^") ;  and  in  anv  case  it  does 

IS.  3.  2  29  &  30  Vict.  c.  96.  3  41  &  42  Vict.  c.  31. 

Mo  &  46  Vict.   c.  43.  ^  Swift  v.  Pannell  (1883)   24  Ch.   D.   210. 

^  Act  of  1878,  ss.  8,  10,  11.  (In  the  case  of  the  security  bill,  it  is  sufficient  if  it 
is  registered  within  seven  clear  days  after  the  earliest  time  at  which  it  could  arrive  in 
England.     Act  of   1882,  s.   8.) 

^Act  of  1878,  s.   10  (1).  8  Act  of  1882,  s.  10. 

9  Act  of  1882,  s.  9.  1"  Act  of  1882,  s.  7.  "  Ibid.,   ss.  4,  8,  9,   12. 

^-  Here  it  is  only  void  as  regards  the  omitted  goods  {ibid.,  s.  4). 


274    A   SHORT  HISTORY  OF  ENGLISH  LAW 

not  protect  the  grantee  against  the  grantor's  trustee  in  bank- 
ruptcy.^ While  an  absolute  bill,  if  properly  registered,  and 
correct  in  form,  is  a  complete  protection  against  all  creditors 
except  the  landlord ;  -  and  an  informality  only  lets  in  the  trustee 
in  bankruptcy  and  execution  creditors,  i.e.  as  between  the  parties, 
it  is  good.^ 

But  it  is  in  that  great  and  growing  domain  of  personal  property 
which  consists  of  choses  in  action,  that  the  great  revolution  of 
the  latest  period  in  the  history  of  English  law  has  taken  place ; 
and  to  that  revolution  we  must  now  turn  our  attention. 

As  its  name  implies,  a  chose  in  action  was,  originally,  a  claim 
which  could  only  be  enforced  by  legal  proceedings,  as  contrasted 
'  Choses  in  with  a  right  or  interest  which  could  be  enforced  by 
'^  ^°°^  actual  seizure  or  possession  of  a  tangible  object.     In 

early  days,  the  precise  situation  of  the  border  line  between  a 
chose  in  possession  and  a  chose  in  action  evidently  depended 
on  the  extent  to  which  self-help  was  permitted.  And,  though 
the  rules  on  the  subject  of  '  forcible  entry  '  of  lands  have  long 
been  severe,^  there  is  warrant  for  saving  that  the  law  on  the 
subject  of  the  seizure  of  chattels  is  deplorably  lax.^  Thus,  in 
cases  like  bailment,  delicate  questions  might  easily  arise.  Say 
that  I  pawn  a  watch  with  C.  Whilst  it  is  still  unredeemed,  is 
it,  as  regards  me,  a  chose  in  possession,  or  in  action  ?  Obviously, 
I  have  no  right  to  take  it  from  C ;  but  it  has  been  held^  that  I 
can  sell  it  to  B,  not  as  a  chose  in  action,  but  as  an  ordinary  chattel 
corporeal.  And  yet,  the  execution  creditor  of  the  pawnbroker 
can  seize  it  for  his  debt,^  whilst  my  creditor  cannot  seize  it  for 
his.^  On  the  other  hand,  if  the  bailment  be  merely  of  a  per- 
missory  character,  terminable  at  the  option  of  the  bailor,  it 
seems  but  reasonable  to  treat  him  as  still  in  possession  of  the 
chattel ;  and  he  is  so  treated.^     For,  probably,   he  would   be 

1  Act  of  1878,  ss.  8,  20 ;    repealed,  as  to  security  bills,  by  Act  of  1882,  s.  15. 

2  Act  of  1878,  ss.  8,  20.  3  ji^^j 

*  Statutes  of  Forcible  Entry  (5  Ric.  II,  st.  1  (1381)  c.  4 ;  15  Ric.  II  (1391)  c.  2  — 
both  still  in  force). 

6  Cf.  Blades  v.  Higgs  (1861)  10  C.  B.  (N.S.)  713,  where  the  bailiff  of  a  landowner 
was  allowed  to  seize  rabbits  shot  by  a  poacher  on  his  employer's  land,  and  found 
at   a   railway   station. 

«  Franklin  v.  Neate  (1844)  13  M.  &  W.  481  (but  against  the  opinion  of  that  very 
learned  judge.  Baron  Parke).  '  Rollason  v.  Rollason  (1887)  34  Ch.  D.  495. 

»  Rogers  v.  Kennnu  (1846)    15  L.  J.  Q.  B.  381. 

» Mandera  v.   Williams  (1849)    18  L.  J.  Ch.  437. 


NEW  FORMS  OF  PERSONAL  PROPERTY  275 

allowed  to  seize  the  chattel  by  force.  But,  obviously,  there  are 
difficulties. 

It  is  not,  in  fact,  till  we  depart  still  further  from  the  notions 
both  of  a  mere  right  of  action,  and  of  a  concrete  object  to  be 
reached  by  means  of  it,  that  we  arrive  at  the  most  important 
classes  of  modern  choses  in  action.  Doubtless  the  bills  of 
exchange  which,  as  we  have  seen,^  were  familiar  to  English 
eyes  before  the  end  of  the  sixteenth  century,  were  popularly 
regarded  as  '  property  '  from  an  early  date ;  but  the  Common 
Law^  persisted  in  treating  them  as  mere  rights  of  action,  alien- 
able only  by  reason  of  their  inheritance  from  the  Law  jNIerchant. 
It  was  not  till  the  advent  of  patents,  copyright,  stock,  and 
shares,  that  the  true  importance  of  choses  in  action  appeared. 
For  these  interests  could  not  possibly  be  regarded  as  mere  rights 
of  action ;  they  were  far  too  positi^'e  and  comprehensive,  though 
the  French  term  for  a  share  ('  action  ')  suggests  that  in  one 
country,  at  least,  the  idea  of  procedural  rights  clung  tenaciously. 
To  take  a  juristic  test,  these  interests  are  clearly  jura  in  rem, 
rights  enforceable  against  all  and  sundry  ;  while  bills  of  exchange, 
and  rights  of  action  generally,  are,  as  a  rule,  only  jura  in  'per- 
sonam, i.e.  rights  enforceable  against  specific  persons.  And 
we  remember  the  ancient  rule  of  English  law :  that  chattels 
personal  cannot  be  recovered  by  any  form  of  real  action. 

On  the  other  hand,  these  new  interests  were  certainly  in- 
capable of  possession  ;  nobody  could  bring  the  action  of  Trespass 
for  injury  to  them.  And  so  they  fell,  almost  inevitably,  by 
reason  of  their  '  incorporeal '  character,  into  the  class  of  *  choses 
in  action.'  But  it  is  obvious  that  there  is  a  wide  difference 
between  such  interests,  and,  say,  the  right  to  recover  damages 
for  a  breach  of  contract  or  a  tort ;  and  a  statute  which  lumps 
them  all  together,  or,  at  least,  uses  the  phrase  '  legal  chose  in 
action,'  or  '  things  in  action,'  without  explanation,  will  need  a 
deal  of  interpretation.^ 

With  these  preliminary  remarks,  we  turn  to  examine  the  his- 
tory of  four  leading  groups  of  choses  in  action  of  the  modern  type, 
viz.  copyright,  patents,  stock  and  shares,  and  interests  in  ships. 

It  has  been  already  pointed  out,"^  that  the  disciplinary  action 

1  Ante,  pp.  126-128. 

-Judicature  Act,  1873,  s.  25  (6);    Bankruptcy  Act,  18S3,  s.  44  (iii).     (For  a 

discussion  of  the  scope  of  'choses  in  action'  see  L.  Q.  R.  Vol.  ix,  pp.  311-315;  x, 
143-157  ;    xi,  223-240.)  ^  _4^^g_  pp_  i29,  130. 


276     A   SHORT   HISTORY   OF   ENGLISH   LAW 

of  the  Court  of  Star  Chamber,  combined  with  the  express  grants 
of  patents  or  monopohes  by  the  Crown,  had,  in  effect, 
created  a  hterary  property  in  pubhshed  works  long 
before  the  end  of  the  last  period.  But  the  point  is  so  interest- 
ing, and  has  been  so  much  debated,  that  a  brief  summary  of 
its  history  will  not  be  out  of  place  here. 

The  alarm  created  by  the  introduction  of  the  art  of  printing 
was  immediately  reflected  on  the  Statute  Book.  So  early  as 
the  year  1483,^  the  protectionist  statute  of  Richard  III  had 
expressly  exempted  printed  books  from  its  general  exclusion 
of  foreign  merchandise ;  but  this  clause  was  repealed  by  a 
statute  of  1533,"  which  totally  forbade  the  sale  of  books  im- 
ported from  beyond  the  seas,  while  at  the  same  time  empowering 
the  Lord  Chancellor,  Treasurer,  and  two  Chief  Justices,  to 
abate  the  '  enhanced '  prices  of  native  works. 

As  has  been  said  before,  the  control  of  the  press,  from  the 
time  of  its  invention,  was  exercised  by  the  Privy  Council,  work- 
The  ing  through  the  Star  Chamber.     The  Star  Chamber, 

Company  again,  used  as  its  agent  the  Stationers'  Company, 
which  is  said  ^  to  have  received  its  first  charter  from  Philip  and 
Mary  in  155G,  and  a  confirmation  from  Elizabeth  two  years 
later.  No  one  was  entitled  to  exercise  the  art  of  printing  unless 
he  was  a  member  of  this  company  ;  and  the  company  was  vested 
with  the  usual  disciplinary  powers  of  craft  gilds,  for  the  double 
purpose  of  preventing  any  infringement  of  its  monopoly  and 
controlling  its  own  members.  Further  than  that,  no  book  could 
be  published  without  an  express  license  of  some  high  State 
official.  It  is  obvious,  therefore,  that  any  infringement  of  the 
monopoly  de  facto  created  by  the  grant  of  a  license  to  publish, 
could  only  be  effected  with  the  collusion  of  the  government ; 
even  though  no  express  grant  of  a  monopoly  were  made.  And 
it  is  said,  that  this  fact  was  explicitly  recognized  by  a  decree  of 
the  Star  Chamber  in  1637.^ 

It  might  have  been  supposed  that  the  withdrawal  of  the 
Crown  from  Parliamentary  proceedings  at  the  outbreak  of  the 
Common-       Civil  War,   would  have  led  to  a  relaxation  of  this 

wealth  .  T^  1        T  T-»     !•  1 

Ordinance  rigid  system.  But  the  Long  Parliament  proved  to 
be  no  more  liberal  on  this  point  than  the  statesmen  of  Eliza- 

>  1  Ric.  Ill,  c.  9,  s.  12.  -  25  Hen.  VIII,  c.  15. 

3  Donaldson  v.  Beckett  (1764)  2  Bro.  P.  C.  13G.  *  Ibid.,  ubi  sup.,  at  p.  136. 


NEW  FORMS  OF   PERSONAL  PROPERTY    277 

beth  and  James;  and,  by  an  Ordinance  of  the  year  1643/ 
the  system  was  substantially  confirmed,  with  the  necessary 
adaptations.  No  books  were  to  be  printed  without  hcense  of 
the  ParHamentary  Commissioners,  and  entry  in  the  Stationers* 
Register  '  according  to  ancient  custom.'  Moreover,  no  un- 
authorized person  was  to  print  or  import  copies  of  books  Ucensed 
and  duly  registered  as  belonging  to  a  member  of  the  company ;  ^ 
and  the  most  drastic  powers  of  search  and  seizure,  extending 
even  to  arrest  of  the  person,  were  given  to  the  company. 

In  spite  of  the  indignant  protest  of  Milton,  before  referred 
to,  this  system  appears  to  have  continued  during  the  rest  of 
Licensing  ^^c  Interregnum.  Immediately  after  the  Restora- 
Act  tion,  it  was  revived  and  intensified  by  the  Licensing 

Act  of  1662,^  which  not  only  confirmed  the  monopoly  of  the 
Stationers'  Company  and  its  drastic  powers'*  as  well  as  the 
rule  against  unlicensed  printing,^  but  extended  the  right  of  search 
to  King's  Messengers,  armed  with  warrants  of  a  Secretary  of 
State,  who  '  for  the  better  discovering  of  printing  in  corners 
without  license,'  are  empowered  to  take  with  them  constables 
or  such  other  assistance  as  they  shall  see  fit,  and,  at  any  time 
they  shall  think  fit,  to  search  all  houses  and  shops  where  they 
shall  know,  or  on  some  probable  reason  suspect,  any  unlicensed 
printing  to  be  going  on.^  This  drastic  clause  was  probably 
the  origin  of  those  '  general  warrants  '  which  played  such  a 
conspicuous  part  a  century  later ;  but  the  Act  of  1662  is  also 
important  as  introducing  the  rule,^  that  free  copies  of  all  pub- 
lished works  are  to  be  sent  to  the  King's  Library  and  the  two 
older  English  universities,  whose  peculiar  privileges  are  expressly 
preserved.  ^ 

It  is  again  obvious,  that  the  Licensing  Act,  though  not  in 
form  creating  any  positive  copyright,  in  effect  would  make  it 
impossible,  without  a  breach  of  law  or  the  connivance  of  the 
State,  for  any  unauthorized  person  to  infringe  the  negative 
monopoly  conferred  by  the  licensing  system  on  the  printer  of 
a  duly  licensed  and  registered  book.  And,  in  fact,  there  are 
substantial  traces,  so  early  as  the  year  1679,  of  the  recognition 

^  Acts  and  Ordinances  of  the  Commonwealth,  I,  184-7. 

^  This  is  a  clear  recognition  of  copyright,  though  rather  in  the  printer  than  the 
author.  3  JS  &  14  Car.  II,  c.  33. 

''Ss.  3,  10  (the  number  of  printers  was  also  severely  restricted). 
»S.  3.  «S.  15.  'S.  17.  8S.  18. 


278    A   SHORT  HISTORY   OF  ENGLISH  LAW 

of  a  right  of  action,  a  variety  of  the  Action  of  Case,  for  such 
infringement;^  while,  from  the  year  1681  onwards,  Chancery 
seems  to  have  granted  injunctions  to  prohibit  similar  offences.^ 

But,  as  is  well  known,  the  Licensing  Act,  which  was  from 
the  first  treated  as  temporary,  was,  after  various  short  renewals, 
finally  cast  out  by  Parliament  in  the  year  1695;^  and  there- 
upon the  whole  licensing  system,  together  with  a  large  part  of 
the  monopoly  of  the  Stationers'  Company,  fell  to  the  ground. 
Unfortunately,  the  indirect  protection  afforded  to  authors  by 
the  system  fell  with  it ;  and,  though  Chancery  seems  to  have 
continued  to  give  them  some  trifling  assistance,^  it  is  doubtful 
whether  this  assistance  extended  to  any  but  '  prerogative  ' 
rights,  such  as  those  connected  with  the  sale  of  Bibles  and 
almanacs.  It  was,  of  course,  difficult,  if  not  impossible,  in  face 
of  the  Statute  of  Monopolies,  to  revive  the  practice  of  granting 
patent  rights. 

At  length,  however,  in  the  year  1709,^  the  first  direct  statu- 
tory creation  of  copyright  took  place.  By  the  statute  of  Anne, 
First  Copy-  ^^le  exclusive  right  of  publishing  was  conferred  upon 
right  Act  the  author  and  his  assigns  for  a  period  of  fourteen 
years  from  publication ;  provided  that  the  work  in  question 
were  registered  before  publication  at  Stationers'  Hall.^  The 
period  of  fourteen  years  was  probably  due  to  the  reflex  action 
of  the  Statute  of  INIonopolies  of  1G23 ;  but  a  relaxation  of  it 
was  found  in  a  clause  giving  the  author  an  extension  to  another 
period  of  fourteen  years,  if  he  should  be  living  at  the  expiry  of 
the  first  period.^  The  former  licensing  authorities  were  still 
allowed  to  regulate,  to  a  certain  extent,  the  prices  of  books ;  ^ 

1  Lilly,  Modern  Entries  (ed.  1723)  p.  67,  whore  the  Declaration  in  Ponder  v.  Braddell 
lor  the  unauthorized  printing  of  Bunyan's  Pilgrim's  Progress,  ia  given ;  but  the  fate 
of  the  action  is  not  stated.  The  plaintiff  is  described  as  'proprietor  of  the  copy  of 
a  certain  book.'     Needless  to  say,  the  plaintifT  was  not  the  author. 

-  Particulars  are  given  in  the  report  of  Donaldson  v.  Beckett  (1774)  2  Bro.  P.  C, 
at  pp.  137-8. 

'  This  fact  is  not  so  obvious  as  it  might  be ;  owing  to  the  peculiar  history  of  the 
Licensing  Act.  The  statute  was  renewed  in  1692  by  the  Expiring  Laws  Continuance 
Act  (4  W.  &  M.  c.  24,  s.  14)  for  one  year  from  13th  February,  1692,  and  thence  until 
the  end  of  the  next  session  of  Parliament.  The  next  session  after  13th  February, 
1693,  began  on  12th  November,  1694,  and  ended  on  3d  May,  1695.  By  that  time 
the  Commons  had  definitely  refused  to  include  the  statute  in  the  Expiring  Laws  Con- 
tinuance Act  of  the  year  1695  (6  &  7  Will.  IIL  c.  14).  The  Licensing  Act,  there- 
fore, ceased  to  be  in  force  on  3d  May,  1695.  (I  owe  these  facts  to  the  kindness  of 
Master  Romer.) 

"  See  particulars  in  Donaldson  v.  Beckett,  ubi  sup.,  at  p.  137. 

^H  Anne,  c.   19  (or  21).  «  Ss.  1,  2.  ^  S.  11.  »  S.  4. 


NEW  FORMS  OF  PERSONAL  PROPERTY    279 

and  the  policy  of  prohibiting  the  importation  of  English  books 
printed  abroad  was  continued,  doubtless  in  the  supposed  interests 
of  authors  themselves.^  The  list  of  free  copies  was  extended  to 
nine;  for  the  purpose  of  including  the  Scottish  Universities, 
Sion  College,  and  the  Faculty  of  Advocates.^ 

So  far  as  literary  copyright  is  concerned,  the  period  between 
the  passing  of  the  Act  of  Anne  and  the  Copyright  Act  of  1842, 
was  marked  chiefly^  by  the  settlement  of  two  important  ques- 
tions. One  of  these  was  precisely  that  which  has  presented 
itself  in  these  pages.  Was  there  or  not,  apart  from  the  Act  of 
Anne,  any  '  common  law  '  copyright  in  published  works  ?  This 
question  was  decided,  for  legal  purposes,  in  the  negative,  by 
the  House  of  Lords,  in  the  famous  case  of  Donaldson  v.  Beckett, 
in  the  year  1774.'*  The  case  is  interesting,  for  literary  as  well 
as  for  legal  reasons;  for  it  was  concerned  with  the  proprietor- 
ship of  Thomson's  charming  poem  The  Seasons,  and  his  much 
less  valuable  tragedy  Sophonisba.^  The  other  question  related 
to  the  property  in  unpublished  writings,  such  as  letters  and 
diaries.  Could  any  person  into  whose  hands  such  documents 
lawfully  came  print  and  publish  them  for  profit  ?  This  question 
was  answered  in  the  negative  by  Lord  Hardwicke,  in  the  case  of 
Pope  V.  Curl,  decided  in  1741,^  in  which,  it  is  interesting  to 
note,  the  author  of  the  letters  in  question  was  himself  plaintiff. 
Lord  Hardwicke's  Order  lays  it  down,  that  the  fact  that  letters 
are  written  to  A,  does  not  make  them  the  property  of  A,  in 
the  sense  that  he  may  publish  them.  They  are  his  to  read, 
not  to  publish. 

In  the  year  1842,  the  second  great  Copyright  Act^  made 
a  liberal  extension  of  the  period  of  copyright,  by  providing 
Copyright  ^hat  it  sliould  continue  for  forty-two  years  from 
Act,  1842  publication,  or,  if  the  author  were  then  living,  till 
the  expiry  of  seven  years  from  his  death ;  and  this  extension 
applied  to  works  then  in  existence  of  which  the  copyright  had 

IS.  7.     (This  policy  was  not  abandoned  tiU  1801  (41  Geo.  Ill,  c.  107,  s.  7).) 

^  S.  5.  (It  will  be  remembered  that  the  Union  with  Scotland  had  taken  place  two 
years  before  the  passing  of  the  Act  of  1709.  On  the  Union  with  Ireland  in  1801,  an 
Act  (41  Geo.  Ill,  0.  107)  was  passed  to  extend  the  rules  of  the  Act  of  1709  to  that 
country.) 

^  There  was  a  statute  in  1814  (54  Geo.  Ill,  c.  156)  which  extended  the  author's 
copyright  to  the  period  of  his  life,  when  that  exceeded  28  years  from  publication 
(s.  4).  4  9   Bro.    P.  C.    129. 

^  Again,  it  is  perhaps  needless  to  say,  the  author  was  not  the  plaintiff. 

^2  Atk.  342.  7  5  &  6  Vict.  c.  45. 


280    A  SHORT  HISTORY  OF  ENGLISH  LAW 

not  expired,  and  was  still  vested  in  the  author  or  his  family.^ 
The  Act  settled  a  somewhat  burning  question,  by  providing^ 
that  the  contributions  to  encyclopaedias  and  periodical  works 
or  works  published  in  series,  should  belong  to  the  proprietor 
who  had  commissioned  and  paid  for  them ;  but,  in  the  case  of 
a  contribution  to  a  periodical,  the  Act  provided^  that  the  con- 
tributor might  republish  after  twenty-eight  years,  during  which 
time  the  proprietor  of  the  periodical  should  not  be  entitled  to 
publish  in  separate  form  without  the  author's  consent.  The 
right  to  forbid  reproduction  of  their  work  in  dramatic  form, 
which  had  been  conferred  upon  authors  for  a  period  of  twenty- 
eight  years  or  life  by  a  statute  of  the  year  1833,  ■*  was,  by  the  Act 
of  1842,^  placed  on  the  same  footing  as  to  duration  as  literary 
copyright,  and  extended  to  musical  works. 

Meanwhile,  an  attempt  had  been  made^  to  extend  the  pro- 
tection afforded  by  the  copyright  law  to  the  works  of  English 
Interna-  authors  in  foreign  countries,  on  terms  of  reciprocity 
Copyright  which  should  equally  protect  the  works  of  foreign 
authors  here ;  and  this  attempt  was  repeated  in  a  statute  of  the 
year  1844,^  which  empowered  the  Crown,  by  Order  in  Council, 
to  grant  protection  to  foreign  authors  in  whose  countries  English 
authors  received  similar  consideration.  Obviously,  however, 
such  an  attempt,  in  the  absence  of  international  co-operation, 
was  not  likely  to  go  very  far,  or  be  very  satisfactory ;  and 
accordingly,  the  friends  of  literature  bent  their  efforts  to  secure 
such  co-operation.  At  length,  in  the  year  1885,  a  conference 
took  place,  which  produced  a  document  known  as  the  '  Berne 
Convention,'  setting  forth  a  basis  of  an  international  copyright 
code  for  the  civilized  world.  Obviously,  this  document  is  of 
no  legal  validity  in  any  country  which  has  not  accepted  it. 
But  Great  Britain  immediately  gave  in  her  adhesion ;  and,  in 
the  year  1886,  the  Imperial  Parliament  passed  a  short  Act^  to 
enable  the  Crown,  and  all  persons  interested,  to  give  its  pro- 
visions the  force,  not  merely  of  international,  but  of  national  law. 

'  Ss.  3,  4.  2  S.  18.  3  7^^_ 

^  3  &  4  Will.  IV,  c.  15,  s.  1.  (It  is  to  be  observed,  that  the  period  of  protectioa 
given  to  dramatic  works  by  this  Act,  and  to  dramatic  and  musical  works  by  the  Act 
of  1842  (s.  20)  ran  from  publication  (or  representation),  and  that  it  obviouslj'  only 
applied  to  dramatic  and  musical  works  composed  as  such,  i.e.  not  to  the  right  of 
adaptation.)  *  S.  20.  «  By  1  &  2  Vict.  c.  59. 

'  International  Copyright  Act  (7  &  8  Vict.  c.  12). 

*  International  Copyright  Act  (49  &  50  Vict.  c.  33). 


NEW  FORMS  OF  PERSONAL  PROPERTY  281 

One  other  point  remains  to  be  noticed,    before  we  proceed 
to  a  brief  summary  of  the  statute  which,  just  as  this  book  goes 
Colonial         ^o    press,    has    remodelled    English    copyright    law. 
Copyright       Acts  of  the  Imperial  Parliament  do  not  affect  the 
colonies ;   unless  '  either  by  express  words  or   necessary  implica- 
tion   (they)  extend  to  the  colonies.'^     No  such   expression  or 
implication  is  to  be  found  in  the  early  copyright  statutes,  as 
regards  the  general  purview  of  copyright ;   but  in  those  statutes, 
and  especially  in  the  Act  of  1842,  will  be  found  certain  pro- 
visions- prohibiting  the  import   into   any  part  of  the  British 
Dominions  of  copies  of  British  copyright  works  printed  abroad, 
e.g.  the  well-known  '  Tauchnitz  '  editions.     And  so,  until  the 
passing  of  the   Colonial   Copyright   Act,    1847,^  there   appears 
to  have  been  no  prohibition  (other  than  the  expense  involved) 
against  the  printing  and  selling  in  the  British  colonies  of  British 
copyright  books;    even  against  the  wishes  of  the  proprietors 
of  the  British  copyright.     By  that  statute,  however,  the  Crown 
was  empowered,  on  the  passing  in  any  colony  of  a  proper  copy- 
right statute,   affording  due  protection  to  British  authors,  to 
exempt  that  colony  from  the  operation  of  the  prohibitory  clauses 
of  the  Acts  of  1842  and  1845;    and,  though  this  does  not    seem 
to  be  a  great  inducement,  in  fact  the  good  sense  and  loyalty 
of  the  great  self-governing  colonies,  have  caused  them,  in  most 
cases,    to    enact    proper    copyright    legislation.     Accordingly, 
after  an  Act  relating  specially  to  Canada  had  been  in  operation 
for  eleven  years,  the  Imperial  Parliament,  in  the  International 
Copyright  Act,   1886,^  boldly  extended  the  law   (with  certain 
slight  exceptions)  both  of  national  and  international  copyright, 
to  the  whole  of  the  British  dominions. 

The  Copyright  Act,  1911,  deals  with  all  aspects  of  the  ques- 
tion —  national,  colonial,  and  international ;    also,  in  addition 

to  books  and  other  printed  matter,  with  dramatic 
Act  of  1911  ,  .     .  1     /    •  1  11. 

work,  artistic  work  (pictures,  sculptures,  and  archi- 
tectural drawings),^  engravings,  and  photographs.^     The  chief 

^  New  Zealand  Loan,  &c.  Co.  v.  Morrison  [1898]  A.  C,  at  p.  357,  per  Lord  Davey. 

2  Copyright  Act.  1842,  s.  7 ;    8  &  9  Vict.  (1845)  c.  93,  s.  9. 

3  10  &  11  Vict.  c.  95.  *S.  8. 

*  The  protection  extends,  not  merely  to  the  reproduction  of  the  dra-wnngs,  in 
similar  form,  but  to  application  of  the  '  character  or  design '  on  other  buildings  (s.  35) . 

^  The  Act  does  not,  however,  give  protection  to  industrial  designs  intended  to 
be  multiplied  by  industrial  process  (s.  22).  These  may  be  protected  under  the 
Patent  Act. 


^82    A   SHORT  HISTORY   OF  ENGLISH  LAW 

changes  introduced  by  it  are,  to  fix  a  uniform  period  for  copy- 
right of  the  author's  hfe,  and  fifty  years  further/  or,  where 
the  work  is  posthumously  pubhshed,  of  fifty  years  from  publi- 
cation.^ In  the  case  of  photographs,  however,  the  protection 
only  runs  for  fifty  years  from  the  making  of  the  original  nega- 
tive from  which  the  photograph  is  taken ;  ^  and,  in  the  case 
of  gramophone  and  similar  records,  for  a  like  period  from  the 
making  of  the  original  plate. ^  But,  though  copyright  remains 
generally  assignable,  no  assignment  (otherwise  than  by  will) 
by  an  author,  who  is  also  the  first  owner  of  any  copyright, 
will  operate  to  pass  any  copyright  beyond  twenty-five  years 
from  his  death ;  on  the  expiration  of  which  period  the  copy- 
right will  pass  to  the  author's  personal  representatives.^  There 
are,  however,  important  provisions  in  the  iVct  to  prohibit  the 
suppression  of  an  author's  works  after  his  death.® 

The  practice  of  requiring  delivery  of  free  copies  to  public 
institutions,  which  began,  as  we  have  seen,^  in  1662,  and  has 
since  undergone  so  many  fluctuations,  is  now  settled  by  re- 
quiring the  publisher  to  deliver  one  copy  of  the  best  and  most 
complete  form  of  every  book  published  by  him  to  the  British 
Museum,  and  entitling  five  other  libraries,  those  of  Bodley, 
Cambridge  University,  the  Faculty  of  Advocates  at  Edinburgh, 
Trinity  College,  Dublin,  and  the  National  Library  of  Wales- 
(the  latter  with  certain  reservations)  to  claim  copies  of  the 
most  numerous  edition.^ 

A  somewhat  startling  feature  of  the  Act  is,  that  it  professes  ^ 
to  abolish  entirely  the  so-called  '  common  law  '  or  proprietary 
rights  of  an  author  or  any  one  else,  in  both  published  and  un- 
published material ;  but  this  apparent  revolution  in  the  law 
affecting  unpublished  material  is  substantially  explained  by  the 
fact  that,  under  the  new  statute,  copyright  in  literary,  dramatic, 
musical,  and  artistic  work  will  run,  not  from  the  date  of  pub- 
lication, but  from  that  of  creation. ^°  The  change  will,  however, 
doubtless  affect  the  date  of  publication  of  political  memoirs 
and  the  like ;    though,   presumably,   so  long  as  these  remain 

'  S.  3.  (Generally  speaking,  the  extension  applies  to  existing  copyright  (s.  24) 
in  the  manner  specified  in  Sched.  I  of  the  new  Act.)  ^  S.  17. 

'  S.  21  I  In  these  cases,  the  owner  of  the  original  negative  or  plate  is  deemed  to 
^  S.  19  I       be  the  author  of  the  work.  »  S.  5  (2). 

*  S.  4.     The  Act  retains  the  generally  discredited  'compulsory  license'  system. 
''Ante,  p.  277.  «  S.  15.  »  S.  31. 

^^  Ss.  1  (1),  3.      (This  fact  is  not  made  so  clear  as  it  might  be.) 


NEW   FORMS   OF   PERSONAL   PROPERTY     283 

in  the  actual  custody  of  the  persons  entitled  to  publish  them, 
the  ownership  of  the  material  will  be  protected  by  the  ordinary 
law  of  property.  With  regard  to  copyright  in  work  which 
first  appears  in  an  oral  form,  the  Act  in  effect  gives  no  exclusive 
right  to  the  reproduction  of  political  speeches ;  ^  but,  as  respects 
other  oral  deliveries,  such  as  lectures,  addresses,  non-political 
speeches,  and  sermons,  it  treats  the  first  authorized  delivery 
in  public  as  the  creation,  and  gives  the  authors  the  general 
period  of  life  and  fifty  years  as  the  period  of  copyright.^ 

Finally,  the  new  statute  substantially  incorporates  the  pro- 
visions of  the  existing  International  Copyright  Acts,  by  em- 
powering the  Crown  ^  to  extend  their  operation  to  such  countries 
as  shall  have  made  due  provision  for  reciprocal  treatment  of 
British  authors ;  but  the  operation  of  such  an  Order  will  not 
extend  to  a  self-governing  colony,  unless  that  colony  volun- 
tarily adopts  it.'*  Similarly,  the  Copyright  Act  itself,  though 
generall}^  operative  throughout  the  Empire,  will  not  apply 
to  a  self-governing  colony ;  unless  either  such  colony  has  enacted 
satisfactory  provisions  for  the  protection  of  British  authors 
within  its  boundaries,  or  unless  the  legislature  of  such  colony 
has  expressly  adopted  it.^  But,  until  the  new  Act  does  apply 
to  a  self-governing  colony,  the  previous  law  will  be  in  force 
there;  ^  although,  for  most  purposes,  the  Act  of  1911  has  super- 
seded all  previous  legislation  on  the  subject  of  copyright.'^ 

The  modern  system  of  monopoly  rights  in  the  reproduction 

and   distribution   of   newly   invented   articles   of   manufacture, 

commonlv    known    as    '  patents,'    had    also,    as    we 
Patents  *"  . 

have   seen,^   established   itself   during   the   preceding 

period,  under  the  exempting  clause  of  the  Statute  of  Monopolies, 

passed  in  1623.^     Apparently,  this  simple  provision  served  the 

needs  of  the  country  for  more  than  two  hundred  years ;   except 

that  the  so-called  '  copyright  in  designs,'  i.e.  the  exclusive  right 

to  reproduce  articles  of  a  particular  design,  was  acquired  by 

those   interested    in    the    Manchester    soft-goods   trade   in   the 

eighteenth   century. ^°     But  in  the  year   1835,  the   Crown  was 

empowered,  in  special  cases,  to  extend  the  duration  of  a  patent 

1  S.  20.  Apparently,  only  a  newspaper  may  publish  unauthorized  reports  (Qu. 
any   time   limit?). 

2Ss.  1  (3),  35  (1).  'S.  29.  ^S.  30.  ^g.  25(1). 

6S.  26  (2).  'S.  36.  ^Ante,  pp.  128,  129.  9  21  Jae.  I,  c.  3,  s.  6. 

1°  27  Geo.  Ill  (1787)  c.  38 ;    34  Geo.  Ill  (1794)  c.  23. 


284     A   SHORT  HISTORY  OF  ENGLISH  LAW 

for  seven  years;  and  the  unauthorized  use  of  the  name  of  a 
holder  of  a  patent  was  prohibited  under  penalties.^  In  the 
year  1839,  '  copyright  in  design  '  was  made  appHcable  generally 
to  all  manufactures,  or,  at  least,  widely  extended  to  include,  not 
merely  printed  patterns,  but  models  of  solid  fabrics,  and  the 
shape  of  any  article  of  manufacture  not  included  in  the  statutes, 
previously  alluded  to,  of  the  eighteenth  century.^  The  pro- 
tection given  by  this  statute  was  brief,  covering  only  a  period 
of  twelve  months  ;  ^  but  this  period  was  extended  to  three  years, 
and  the  scheme  considerably  amended,  by  statutes  of  the 
years  1842  and  1843.^ 

The  great  increase  of  inventiveness  in  mechanical  processes 
which  attended  the  industrial  revolution  of  the  first  half  of  the 
nineteenth  century,  soon  outgrew  the  primitive  machinery  by 
which  the  Statute  of  ^Monopolies  had  been  worked.  Accord- 
ingly, in  the  year  1852,^  the  present  Patent  Office  was  established 
by  Act  of  Parliament ;  and  a  regular  process  of  application,  with 
provisional  and  complete  specifications,  reference  to  Law 
Ofiicer,  advertisement,  and  objections,  much  as  it  now  exists,^ 
was  set  up.  This  Act  also  introduced  the  system  of  periodical 
payment  of  stamp  duties,  first  fixed  at  the  amounts  of  £50  and 
£100,  payable  at  the  end  of  the  seventh  and  tenth  years  re- 
spectively of  the  currency  of  the  patent.^  The  x\ct  also  provided 
for  the  establishment  of  a  Patent  Register,  in  which  inventors 
desirous  of  ascertaining  whether  their  ideas  had  been  anticipated 
might  make  effective  search.^ 

For  some  time  prior  to  the  year  1875,  Courts  of  Equity,  in  the 
exercise  of  their  jurisdiction  in  the  matter  of  fraud,  had  been  in 
the  habit  of  issuing  injunctions  ^  against  the  false  use  of  trade 
names,  practised  for  the  purpose  of  '  passing  off  '  goods  as  those 
of  some  well-known  firm  of  high  reputation.  Not  unnaturally, 
this  protection  had  greatly  added  to  the  value  of  a  '  trade  name ' ; 
and,  in  spite  of  the  protests  of  some  distinguished  judges,  it  was 
at  length  too  plain  to  be  ignored,  that  a  new  form  of  property 
had  in  fact  arisen.     Accordingly,  it  was  determined  to  put  this 

>  5  &  6  Will.  IV,  c.  83,  S3.  4,  7.      ,         2243  yict.   c.   17,   s.   1.         '  Ihid. 

*  5  &  6  Vict.  c.  100 ;    6  &  7  Vict.  c.  65.  ^  \h  h  \&  Vict.  c.  83. 

*  Ss.  6,  13.  t  S.  17.  8  S.  34. 

'^  Well-known  cases  are  MillinQion  v.  Fox  (1838)  3  M.  &  Cr.  338;  Croft  v.  Dmj 
(1844)  7  Beav.  43;  Burgess  v.  Burgess  (1853)  3  Do  G.  M.  &  G.  896  (where  the  in- 
junction was  refused).  The  Common  Law  Courts  also  recognized  the  right  to  relief 
{Sykea  v.  Sykes  (1824)  3  B.  &  C.  541). 


NEW   FORMS   OF   PERSONAL   PROPERTY     285 

new  property  on  a  statutory  footing ;  and,  by  the  Trade  Marks 
Registration  Act  of  1875,^  a  person  who  claimed  that  a  certain 
Trade  name  or  style  (not  necessarily  his  own)  had  become 

Marks  Reg-  SO  closely  associated  in  the  public  mind  with  a  par- 
ticular class  of  goods  sold  by  him,  that  it  would,  in 
effect,  be  fraudulent  in  any  rival  to  sell  other  goods  under  it,  was 
authorized  to  register  his  claim  in  a  public  register.^  At  first, 
this  registration  was  only  to  be  'prima  facie  evidence  of  title ;  ^ 
but  if,  after  a  period  of  five  years'  registration,  no  one  had  suc- 
ceeded in  procuring  its  removal  from  the  register,  the  registered 
proprietor's  title  would  become  absolute,  and  would  be  assign- 
able and  transmissible  with  the  good-will  of  his  business,"*  while, 
in  any  case,  he  would  be  unable  to  take  proceedings  for  an  al- 
leged infringement,  until  his  claim  was  registered.^  Apparently, 
once  his  title  completed,  the  proprietor  would  be  able  to  hold  or 
transmit  it  in  perpetuity. 

An  important  statute  of  the  year  1883,  the  Patents,  Designs, 
and  Trade  Marks  Act,^  introduced  several  alterations  into  the 
Patents  Act  1^^^-  ^^  allowed  the  fees  due  to  the  Crown  to  be  paid 
of  1883  by  yearly  instalments,^  extended  the  maximum  period 

of  duration  of  a  patent  to  twenty-eight  years, ^  made  patents  bind 
the  Crown  (with  due  safeguards  for  the  right  of  Government 
departments  to  use  them  on  payment  of  compensation),^  pro- 
vided for  the  issue  of  compulsory  licenses  where  the  patent  was 
not  being  adequately  worked  in  the  United  Kingdom, ^°  and  even 
made  some  attempt  towards  establishing  Imperial  and  inter- 
national patent  rights. ^^  Moreover,  it  extended  the  so-called 
'  copyright  in  designs  '  from  three  to  five  years ;  ^^  and  provided 
for  the  re-registration  of  a  trade-mark  at  the  end  of  fourteen 
years   from   its   first   registration.^^ 

Statutory  amendments  of  minor  importance  followed  in  the 

years  1885,  1886,  and  1888 ;  ^^  and,  in  the  year  1905,  the  subject 

of  trade-marks  was  definitely   severed  from   Patent 
Acts  of  1907  /     .  1        1  •   1     •      1  ii"      1-     1     •  N    1 

Law  (with  which  it  has,  really,  little  m  common)  by 

the  consolidating  Trade  Marks  Act  of  1905.^^     A  far  more  im- 

1  38  &  39  Vict,  c,  91.  ^  S.  2.  7  Sched.    II. 

2  S.  1  6  S.  1.  8  S.  25. 
5  S.  3.  6  46  &  47  Vict.  c.  57.  ^  g  27. 
^0  S.  22.                    "  Ss.  103,  104.                    12  g  50.                    13  g   79 

"  48  &  49  Vict.  c.  63 ;  49  &  .50  Vict.  c.  37 ;   51  &  52  Vict.  c.  5n. 
"  5  Edw.  VII,  c.  15. 


286    A  SHORT   HISTORY   OF   ENGLISH  LAW 

portant  statute  was  that  of  the  year  1907,  which  contains  ^  the 
famous  clause  authorizing  the  Comptroller  of  Patents  -  (subject  to 
any  appeal  to  the  Court)  to  revoke  any  patent  after  the  expiration 
of  four  years  from  its  issue,  on  the  ground  that  it  is  being  worked 
wholly  or  mainly  outside  the  United  Kingdom.  The  same  Act  ^ 
contains  a  provision  to  the  effect  that  the  unintentional  infringer 
of  a  patent  shaJl  not  be  liable  to  damages,  but  only  to  an  injunc- 
tion, and  another  making  a  renewal  of  the  copyright  in  a  design 
obtainable  as  of  course  for  a  period  of  five  years,  with  a  dis- 
cretionary renewal  of  a  second  similar  period,  or  a  maximum  of 
fifteen  years.^  One  of  the  most  useful  amendments  introduced 
by  this  Act  is  that  ^  which  substitutes  the  High  Court  for  the 
Privy  Council  as  the  tribunal  concerned  with  petitions  for  ex- 
tension of  patents ;  the  substitution  of  a  petition  to  the  Court 
for  the  ancient  process  of  Sci.  Fa.,  in  the  matter  of  the  revocation 
of  a  patent,  having  been  effected  by  the  Act  of  1883.^  Finally, 
the  whole  law  on  the  subject  of  Patents  and  Designs  was  con- 
solidated by  a  statute  of  the  year  1907J 

A  third  and  even  more  important  new  form  of  '  incorporeal  ' 
personal  property,  which  acquired  definite  recognition  in  this 
Stock  and  period,  is  that  which  consists  of  stock,  shares,  and 
Shares  debentures  in  or  of  various  forms  of  joint  enterprise. 

Some  day,  it  is  to  be  hoped,  the  History  of  Association  in  Eng- 
land will  be  adequately  written ;  certainly  it  is  well  worth  writ- 
ing. Meanwhile,  we  can  only  here  give  a  brief  sketch  of  the 
legal  aspect  of  the  subject. 

The  medieval  forms  of  co-operation,  such,  especially,  as  the 
village-community,  the  trade  and  craft  gild,  and  the  *  regulated ' 
company,^  had  virtually  done  their  work  by  the  end  of  the  six- 
teenth century ;  though  some  of  the  gilds  survived,  and  some  of 
the  companies  actually  did  business  for  some  time  after.  These 
associations  had  left  as  a  heritage  to  modern  English  law  the 
various  forms  of  co-ownership  (joint  tenancy,  tenancy  in  common, 
and  parcenary)  still  recognized  by  that  law,  and,  above  all,  the 

*  Patents  and  Designs  Amendment  Act  (7  Edw.  VII,  c.  28)  s.  15. 

^  This  official  of  the  Board  of  Trade  had  been  substituted  in  1883  (Act  of  1883, 
8.  83  (1))  for  the  Patent  Commissioners  set  up  by  the  Act  of  1852. 

'S.  27.  *S.  31.  6S.  17.  eg  26. 

"  7  Edw.  VII,  c.  29.  The  amending  Act  of  that  year  (c.  28)  was  thus  really 
etificd  at  its  birth  ;  but  its  provisions  were,  of  course,  incorporated  into  the  consoli- 
dating Act. 

«See  ante,  p.   129. 


NEW   FORMS   OF   PERSONAL   PROPERTY     287 

priceless  conception  of  the  'corporation,'  or  juristic  person.  But 
co-ownership,  as  understood  by  EngHsh  law,  is  far  too  limited 
in  its  scope,  and  crude  in  its  rules,  to  afford  a  satisfactory  basis 
for  great  commercial  enterprises;  and  the  corporation  was 
still  in  an  undeveloped  condition,  which  required  much  care  to 
render  it  a  really  flexible  instrument  of  economics. 

The  practice  of  creating  chartered  joint-stock  companies  of  a 
modern  type  seems  to  have  begun  at  the  commencement  of  the 
Joint  stock  seventeenth  century ;  and  the  formation  of  the  East 
Companies  j^^ia  Company  is  one  of  the  earliest,  if  not  the  very 
earliest,  examples.  At  first,  it  appears,  the  '  joint  stock  '  of  the 
company  was  separately  made  up  for  each  ship ;  perhaps  for 
each  voyage.  But,  in  the  year  1612,^  the  Company  made  the 
momentous  resolve  to  have  one  joint  stock  for  the  whole  of  its 
affairs,  and  thus  inaugurated  a  new  epoch.  The  East  India 
Company,  or  Companies,  (for  there  were  two  of  them),  were 
followed  by  the  Hudson's  Bay  Company  (1670),  the  existence 
of  which  was  recognized  by  statute  in  1707,^  and  by  the  Bank  of 
England  and  the  notorious  South  Sea  Company.  Owing  to  the 
practice  which  had  hitherto  connected  such  companies  with  the 
monopoly  of  a  particular  trade,  there  were  grave  doubts  whether, 
after  the  passing  of  the  Statute  of  Monopolies  in  1623,^  the  Crown 
had  power  to  create  any  such  companies ;  and  it  is  said,^  that  it 
was  through  fear  of  this  statute  that  the  Royal  African  (or 
'  Guinea  ')  Company  abandoned  its  monopoly.  The  Bank  of 
England  and  the  South  Sea  Company  were,  of  course,  established 
by  Act  of  Parliament ;  '"  but  a  simpler  solution  of  the  difficulty 
was  found  by  omitting  from  charters  of  incorporation  all  grants 
of  monopoly  rights.  It  was  under  this  new  practice,  presum- 
ably, that  the  numerous  'bubble'  companies  which  precipitated 
the  disaster  of  1720  were  formed.  Still,  however,  when  any 
enterprise  of  great  magnitude  was  to  be  undertaken  on  a  '  joint 
stock,'  it  was  the  practice  to  procure  incorporation  under  powers 
conferred  by  Act  of  Parliament.  A  notable  example  occurs  in 
the  statute  of  1719,^  under  which  the  London  Assurance  and  the 

'  Cunningham,  Growth  of  English  Industry  and  Commerce,  II,  27. 
2  6  Anne,  c.  37,  s.  23.  ^  21  Jac.   I,   c.  3. 

*  Cunningham,  op.  cit.  II,   125. 

'  Bank  of  England  Act,  1694  (5  &  6  W.  &  M.  c.  20)  ;   5  Geo.  I  (1718)  c.  19,  s.  31. 
'  6  Geo.  I,  c.  18.     The  two  corporations  were  amalgamated  for  borrowing  pur- 
poses in  1831,  and  consolidated  in  1853.      (See  Eloe  v.  Boyton  [1891]  1  Ch.  501.) 


288    A  SHORT  HISTORY  OF  ENGLISH  LAW 

London  Fire  Assurance  Corporations  were  founded.  By  an 
important  section  of  that  Act/  all  unauthorized  joint  under- 
takings formed  since  1718  were  declared  illegal ;  but  not  to  the 
prohibition  of  any  legitimate  partnership  '  in  such  manner  as 
hath  been  hitherto  usually.'  ^ 

The  passing  of  Sir  John  Barnard's  Act  of  1733  against  stock- 
jobbing,^ and  of  the  statute  of  the  year  1767,'*  which  forbade  a 
stockliolder  to  vote  at  any  meeting  unless  he  had  held  his  stock 
for  at  least  six  months,  shows  that  the  practice  of  dealing  in 
stocks  and  shares  was  growing ;  but  it  was,  apparently,  not  till 
the  year  1825,  that  a  new  departure  of  first-rate  importance  was 
made.  In  that  year,  however.  Parliament  completely  reversed 
the  policy  of  1719,  by  abolishing  all  restrictions  on  joint-stock 
trading,^  and  authorizing  the  Crown,  in  grants  of  future  charters, 
Limited  ^^  provide  that  the  members  of  the  corporation  should 
LiabUity  [jg  '  individually  liable,  in  their  persons  and  property, 
for  the  debts,  contracts  and  engagements  of  the  corporation,  to 
such  extent,  and  subject  to  such  regulations  and  restrictions,  as 
His  Majesty  .  .  .  may  deem  fit  and  proper  '  (to  be  expressed 
in  the  charter).^  This  clause  virtually  gave  the  Crown  power 
to  establish  the  principle  of  '  limited  liability  ' ;  but  it  is  not 
quite  clear  whether  in  favour  of  shareholders  or  creditors.  The 
old  rule :  quod  ah  universitate  debetur,  ah  omnibus  non  dehetur, 
would  have  relieved  shareholders  of  all  liability.  On  the  other 
hand,  doubtless,  the  members  of  an  unincorporated  association 
would  have  been  each  individually  liable  to  the  full  extent  of 
the  association's  engagements. 

A  distinct  advance  towards  modern  conditions  is  seen  in  the 
Act  of  1837'^  which  (repealing  and  substantially  re-enacting  a 
slightly  earlier  statute  of  1834^)  definitely  authorizes 
the  Crown  to  restrict  the  liability  of  members  of  even 
an  unincorporated  association,  to  a  fixed  maximum  for  each 
share.^  But  the  Act  provides,^"  that  every  association  to  which 
this  i)rivilege  is  granted  must  have  a  registered  deed  of  partner- 

>  S.  18. 

*  S.  25.  (The  framcrs  of  the  section  made  no  attempt  to  distinguish  legally 
between  such  a  partnership  and  an  unauthorized  association.  Probably  any  such 
attempt  would  have  failed.) 

3  7  Geo.  II,  c.  8.  '7  W' ill.  IV  &  1  Vict.  c.  73. 

*7  Geo.  Ill,  c.  48.  M  &  5  Will.  IV,  c.  94. 

'  6  Geo.  IV,  c.  91,  s.  1.  n  Will.  IV  &  1  Vict.  c.  73,  a.  4. 

•  S.  2.  10  S.  5. 


NEW  FORMS  OF  PERSONAL  PROPERTY    289 

ship,  in  which  the  capital  is  divided  into  '  a  certain  number  of 
shares  ' ;  and  members  are  to  remain  Hable  until  transfers  of 
their  shares  are  registered.^  This  important  statute,  which, 
apparently,  started  the  Register  of  Joint  Stock  Companies,^ 
also  provided  for  the  incorporation  of  companies  for  a  limited 
period ;  ^  but  its  chief  curiosity  is  the  machinery  provided  for 
enabling  creditors  to  assert  their  rights,  and  for  liabilities  to  be 
apportioned  among  shareholders.  The  association,  in  its  deed 
of  partnership,  names  two  or  more  officers  by  whom  it  may  sue 
and  be  sued;^  but,  in  the  latter  case,  the  judgment  creditor 
may,  apparently,^  issue  execution  against  any  shareholder  up 
to  the  amount  of  his  liability.  The  latter  must  pay ;  but  he  may 
then  claim  repayment  from  the  association.^ 

The  year  1844-5  may,  however,  with  justice  be  regarded  as 
laying  the  foundation  of  the  modern  company  system.  No 
Legislation  less  than  six  great  statutes^  were  passed  within  that 
of  1844-5  period  for  the  purpose ;  and  these  establish  certain 
fundamental  principles  of  classification.  In  the  first  place, 
they  distinguish  between  what  may  be  called  '  public  com- 
panies '  in  a  special  sense  {i.e.  companies  formed  to  execute 
undertakings  of  a  public  nature  under  special  Parliamentary 
sanction)  and  ordinary  commercial  companies,  formed  simply 
for  profit.  The  former,  though  usually  incorporated  by  special 
Act  of  Parliament,  are  governed,  in  the  absence  of  legislation 
to  the  contrary,  by  the  Companies  Clauses  Act  of  1845.^  The 
latter  are,  practically,  incorporated  as  of  course,^  on  fulfilment 
of  the  statutory  requirements,  by  registration  under  the  Com- 
panies Acts,  and  are  governed  by  their  Memorandum  and 
Articles  of  Association.  Again,  these  latter  companies  are  now, 
for  the  first  time,  definitely  distinguished  from  unincorporated 
enterprises,  by  the  provision  that  no  association  of  more  than  six 
persons  may  carry  on  the  business  of  banking, ^'^  and  (with  cer- 

1  S.  21.  2  S  16. 

'  S.  29.  This  clause  is  probably  due  to  the  survival  of  the  medieval  idea  that  a 
corporation  is  a  body  'having  a  perpetual  existence.' 

<S.  5.  5S.  24.  «Ss.    11,    12. 

'These  are  the  Railway  Regulation  Act,  1844  (7  &  8  Vict.  c.  85),  the  Joint 
Stock  Companies  Act,  1844  (7  &  8  Vict.  c.  110),  the  Winding  Up  Act,  1844  (7  & 
8  Vict.  c.  Ill),  the  Joint  Stock  Banks  Act,  1844  (7  &  8  Vict.  c.  113),  the  Com- 
panies Clauses  Act,  1845  (8  &  9  Vict.  c.  16),  and  the  Railways  Clauses  Act,  1845 
(8  &  9  Vict.  c.  20). 

*  See  preamble  of  the  Act.  '  Ss.  7,  25. 

1"  Joint  Stock  Banks  Act,  1844,  s.  1. 


290    A   SHORT  HISTORY  OF  ENGLISH  LAW 

tain  exceptions)  not  more  than  twenty-five  any  other  business, 
except  as  a  duly  incorporated  company  under  the  Acts.^  The 
Companies  Act  of  1844  also  introduced  the  familiar  scheme  of 
directors,  general  and  extraordinary  meetings  of  shareholders, 
production  of  balance  sheet,  audit  and  other  features  of  the 
present  day.^ 

.  Apparently,  the  principle  of  limited  liability  was  not  made  a 
matter  of  general  right  until  the  year  1855,  when  a  statute  ^ 
(repealed  but  substantially  re-enacted  by  a  statute  of  the  fol- 
lowing year  '*)  definitely  adopted  it  as  part  of  the  normal  system, 
except  for  insurance  companies  and  banks.  The  Act  of  1856 
reduced  the  maximum  limit  of  non-incorporated  partnerships 
to  twenty,^  made  calls  upon  shareholders  recoverable  as  debts 
due  to  the  company,^  and  drew  the  present  well-known  distinc- 
tion between  compulsory  and  voluntary  winding-up.^  In  the 
following  year,^  a  limited  company  was  empowered  to  convert 
its  fully  paid  shares  into  unnumbered  stock ;  and,  a  year  later 
still,^  the  principle  of  limited  liability  was  extended,  for  the  first 
time  and  with  special  precautions,  to  banks. 

In  the  year  1862,  was  passed  the  great  consolidating  statute,^" 
which  for  so  long  served  as  the  basis  of  company  law.  Inciden- 
Companies  tally,  it  introduced"  an  alternative  method  of  limita- 
Act,  1862  ^Jqi^  Qf  liability,  viz.  limitation  by  guarantee,  and 
defined  the  liability  of  past  shareholders  in  the  event  of  a  wind- 
ing-up, by  providing  ^^  that  they  should  be  liable  to  contribute 
towards  payment  of  the  company's  debts  only  for  one  year  after 
the  transfer  of  their  shares,  and,  even  within  that  period,  only 
for  debts  contracted  before  the  registration  of  the  transfer,  and 
in  default  of  shareholders  existing  at  the  commencement  of  the 
winding-up. 

Apparently,  the  power  to  issue  debentures  and  debenture 
stock  is  part  of  the  general  borrowing  power  conferred  upon 
most  commercial  companies  by  their  Memorandum  or  Articles 
of  Association,  and  did  not,  originally,  spring  from  special  leg- 

*  Companies  Act,  1844,  s.  1.  (The  section  is  involved;  but  that,  apparently, 
18  its  meaning.) 

2Ss.  21.  27.  29,  35.  36.  39.  and  Sched.  A. 

» 18  &   19  Vict.  c.  133.  8  20  &  21  Vict.  (1857)  c.  14.  S3.  5-9. 

*  19  &  20  Vict.  c.  47,  s.  3.  »21  &  22.  Vict.   (1858)  c  91. 
'  S.  4.                                                              10  25  &  26  Vict.  c.  89. 

"  S.  22.  11  S.  9. 

'  Ss.   67,    102.  u  S.  38. 


NEW   FORMS   OF  PERSONAL   PROPERTY    291 

islation.^  But  the  Companies  Act,  1865,-  authorized  the  crea- 
tion of  a  special  class  of  'mortgage  debentures,'  i.e.  debentures 
charged  on  certain  specific  assets  of  the  company,  as  opposed 
to  a  mere  floating  charge  on  the  assets  for  the  time  being  created 
»by  an  ordinary  debenture.  The  provisions  of  the  Act  of  1865, 
which  are  only  applicable  to  companies  entitled  to  lend  money 
on  land,  and  only  to  certain  registered  securities,  were  substan- 
tially modified  by  an  Act  of  the  year  1870.^ 

Various  other  amendments  of  company  law  followed,  in  the 
years  1867,  1870,  1877,  1879,  1880,  and  1883 ;  but  the  next  year 
of  great  importance  in  this  connection  is  1890,  which  witnessed 
the  passing  of  three  company  statutes.  The  first  of  these,  the 
Companies  (Memorandum  of  Association)  Act,  1890,^  enabled  a 
company,  with  the  leave  of  the  Court,  and  after  a  special  resolu- 
tion of  its  shareholders,  to  alter  the  provisions  of  its  fundamental 
document  of  incorporation,  viz.  its  jMemorandum  of  Association 
or  Deed  of  Settlement.  The  second,  the  Companies  (Winding 
Up)  Act,  1890,^  made  considerable  alterations  in  the  procedure  of 
winding  up  a  company  then  in  existence.  The  third,  the  Direc- 
tors Liability  Act,  1890,^  passed  in  consequence  of  the  decision 
in  Derry  v.  Peek,'^  rendered  directors  of  a  company  or  prospective 
company  issuing  a  prospectus  containing  untrue  statements, 
responsible,  in  certain  circumstances,  to  persons  applying  for 
shares  on  the  strength  of  them ;  even  though  they  (the  directors) 
were  ignorant  of  the  untruth  of  their  statements,  or  even  of 
their  issue. 

The  year  1900  also  witnessed  the  passing  of  an  important 
statute  *  dealing  with  the  formation  of  companies,^  and  pre- 
scribing certain  strict  conditions  with  regard  to  the  first  or  '  statu- 
tory '  meeting  of  a  new  company,^"  the  registration  of  mortgages 
affecting  the  assets  of  a  company,^^  and  the  audit  of  companies' 
accounts ;  ^-  and,  in  the  year  1908,  these  and  all  other  legislative 
provisions  at  present  affecting  ordinary  commercial  companies, 
were  consolidated  in  the  Companies  (Consolidation)  Act,  1908,^* 
which  at  present  comprises  the  law  on  the  subject.     Insurance 

I  Lindley,  Companies,  I,  300.  "  28  &  29  Vict.  c.  78. 

'  33  &  34  Vict.  c.  20.     (These  provisions  are  not  affected  by  the  Act  of  1908.) 

^53   &  54  Vict.   c.   62.  Ubid.,  63.  ^  Ibid.,  64. 

'  (1889)  L.R.   14  App.  Ca.  337. 

«  Companies  Act,  1900  (63  &  64  Vict.  c.  48). 

»  Ss.  1-11.  i»  S.  12.  "  S.  14.  >2  ss.  21-23.  ^^  8  Edw.  VII,  c.  69. 


292    A   SHORT  HISTORY  OF  ENGLISH  LAW 

companies,  however,  are  the  subject  of  a  separate  consoHdating 
statute  passed  in  the  following  year,  the  Assurance  Companies  Act, 
Consoiidat-  1909;^  and  banks,  and  companies  specially  incorpo- 
1908  rated  by  Act  of  Parliament  for  carrying  out  public 

undertakings,  do  not  fall  within  the  scope  of  either  of  these 
Acts. 

The  fourth  and  last  kind  of  personal  property  to  which  refer- 
ence can  here  be  made,  is  property  in  ships.  Ships,  in  the  widest 
sense  of  the  term,  including  both  ocean-going  and 
coastal  or  inland  vessels,  were,  of  course,  familiar  to 
the  Courts,  as  chattels  corporeal,  long  before  the  close  of  the 
previous  period.  The  facts  that  a  ship  on  a  distant  ocean  can 
hardly  be  said  to  be  under  the  direct  control  of  her  home-sitting 
owner,  and  that,  in  a  storm,  even  the  master  may  be  said  to  be 
controlled  by,  rather  than  in  control  of,  his  ship,  did  not  deter 
the  Courts  from  applying  to  ships  the  ordinary  possessory  rem- 
edies ;  for  are  not  cattle  and  sheep,  the  oldest  kind  of  '  chattels,' 
liable  to  similar  accidents?  But  the  system  of  registration  and 
partition  of  ships  introduced  by  the  Navigation  Acts  of  Charles 
II  and  his  successors,^  combined  with  the  later  enormous  in- 
crease in  the  cost  of  ships,  did  undoubtedly  change  the  character 
of  ship-owning  to  such  an  extent  as  to  give  to  it  much  of  the 
Navigation  character  of  that  '  ideal  property  '  which  is  usually 
^^^^  classed  as  a  chose  in  action.     As  such,  a  word  must 

be  said  about  it,  regarded  as  a  product  of  the  period  now  under 
review. 

The  Navigation  Act  of  1660,^  as  incidental  to  its  policy  of 
requiring  all  non-European  goods  to  be  imported  in  English 
ships,  and  especially  of  keeping  the  colonial  carrying  trade  as  a 
close  preserve,  required  all  foreign-built  ships,  claimed  as  the 
property  of  Englishmen,  to  be  registered  in  an  English  or  Irish 
port,  with  oath  as  to  true  ownership,  before  being  allowed  to 
ply  between  the  mother-country  and  her  colonies.  The  amend- 
ing Act  of  1696'*  extended  this  provision  to  all  vessels  taking  part 
in  British  or  inter-colonial  trade,  and  required  ^  that  whenever 

^9  Edw.  VII,  c.  49. 

^  These  were,  like  so  much  of  the  Restoration  policy,  a  legacy  from  the  Common- 
wealth. The  principles  of  the  Navigation  policy  arc  clearly  laid  down  in  an 
Ordinance  of  the  9th  October,  1651.  (Acts  and  Ordinances  of  the  Commonwealth, 
II,  559-502.)  3  Car.  II,  c.  18.  "  7  &  8  Will.  Ill,  c.  22,  s.  17.  *  S.  22. 


NEW  FORMS  OF  PERSONAL  PROPERTY    293 

any  alteration  of  property  should  take  place  '  by  the  sale  of  one 

or  more  shares  in  any  ship  after  registering  thereof,  such  sale 

shall  always  be  acknowledged  by  indorsement  on  the  Certificate 

of  the  Register.'     A  slight  relaxation  took  place  in   1773,  by  a 

statute  ^  which,  by  implication,  allowed  a  foreigner  to  acquire 

a  share  in  a  registered  British  sliip  with  the  consent  of  the  owners 

of  three-fourths  of  the  shares,  indorsed  on  the  Register.     But 

this  concession  was  probably  due  to  the  exigencies  of  the  American 

War;    and,  on  the  reconstruction  of  national  policy  which  took 

place  after  the  loss  of  the  American  colonies,  the  old  rule  was 

renewed  in  full  vigour  by  a  drastic  Act  of  the  year  1786.^     That 

,     „^    statute  lays  it  down,  that  no  foreign-built  ship  (except 
Act  of  1786  .     .     "        .  .  ,  T^  .  .  ,     ,  .     \     , 

a  prize;  may   be   registered   as   a  British  ship ;  "^   that 

every  British  ship  having  a  deck  or  being  of  fifteen  tons  burden, 
must  be  registered  in  Great  Britain,  the  Channel  Islands,  or  a 
British  colony,  at  the  port  to  which  she  belongs;  ^  that  no  ship 
may  be  registered  as  a  British  ship  unless  an  affidavit  is  made 
that  all  her  owners  are  British,  even  British  subjects  resident 
abroad  (other  than  members  of  '  factories  ')  being  excluded ;  ^ 
and,  finally,  that,  whenever  property  in  a  British  ship  is  trans- 
ferred, the  certificate  of  registry  must  be  '  truly  and  accurately 
recited   ....   in  the  bill  or  other  instrument  of  sale  thereof.'  ^ 

A  new  code  of  shipping  law  was  contained  in  an  Act  of  1823,'^ 
which,  besides  making  the  system  of  registration  universal  and 
compulsory,  as  a  condition  of  claiming  privileges  as  a  British 
ship,^  introduced  one  or  two  new  legal  features.  The  customary 
division  of  the  property  in  a  ship  into  sixty-four  shares  was  made 
statutory,  with  a  provision  that  no  more  than  thirty-two  owners 
should  be  registered ;  ^  while  it  was  also  provided,^*'  that  transfer 
of  a  share  in  a  British  ship  should  only  take  place  by  bill  of  sale 
or  other  instrument  in  writing  entered  on  the  Registry,  the  trans- 
fer, in  the  event  of  a  later  sale  to  a  bond  fide  purchaser,  dating  from 
the  endorsement  on  the  certificate  of  registry.  On  the  gigantic 
overhauling  of  the  Customs  Laws  which  took  place  in  1825,^^  a 
new  Registry  Act,^"  repealing  but  virtually  re-enacting  the  statute 
of  1823,  was  passed. 

The  year  1845  witnessed  the  passing  of  the  first  of  the  great 

»  13  Geo.  Ill,  c.  26.  '  26  Geo.  Ill,  c.  60.  '  S.  1.  ^  Ss.  3,  4. 

^S.  10.         6g    i7_         M  Geo.  IV,  c.  41.         «  S.  1.         »  S.  30,  i"  Ss.  29,  35. 

^^  The  6  Geo.  IV,  c.  105,  repealed  no  less  than  119  statutes. 
»2  6  Geo.  IV,  c.  110. 


294     A   SHORT   HISTORY   OF   ENGLISH   LAW 

modern  Merchant  Shipping  Acts,^  which  deal,  not  merely  with 

Merchant  the  ownership  and  transfer  of  British  keels,  but 
Shipping  -11  1  .  «      1  ., 

Acts  with    the    many    other    mterests    or    the    mercantile 

marine.  It  would  be  impossible,  in  the  limits  of  space  at  our 
disposal,  to  attempt  a  summary  of  the  legislation  on  this  sub- 
ject. But  it  may  be  pointed  out,  that  the  INIerchant  Shipping 
Act  of  1854  ^  definitely  abandoned  the  policy  of  compulsory 
British  building,  which  had  been  part  of  British  navigation 
policy  for  so  long ;  ^  and,  by  allowing  ^  five  persons  to  be  registered 
as  undivided  owners  of  a  share  in  a  British  ship,  and  requiring 
a  special  form  of  transfer  to  be  used  and  registered,^  practically 
put  the  law  with  regard  to  the  ownership  of  British  vessels  on  its 
present  footing.  After  many  amendments,  the  Act  of  1854 
was  repealed,  and  the  whole  law  of  merchant  shipping  re-stated 
in  the  great  Merchant  Shipping  Act  of  1894,^  which  has  itself 
been  frequently  amended. 

Finally,  a  word  must  be  said  about  the  transferability  of  this 
new  kind  of  property,  and  of  choses  in  action  generally ;  for, 
with  regard  to  the  latter  subject,  there  has  been  a  misunderstand- 
ing which  ought  never  to  have  arisen. 

It  has  been,  on  more  than  one  occasion,^  previously  pointed 

out,  that  the  medieval  common  law  had  the  greatest  dislike  to 

the  assignment  of  rights  which  could  onlv  be  enforced 
Transfer  ,        ,        ,  t  i        /-,  i  •  i 

of  Choses       by   legal   proceedings ;    the   Courts  taking  the  view 

that  such  a  transaction  was,  in  effect,  transferring  a 

lawsuit,  and  thus  encouraging  maintenance,  barratry,  and  other 

evils.     This  dislike  extended  to  the  attempted  assignment  of 

possibilities,  or  even  future  interests  of  any  kind ;    which  were 

looked  upon  in  much  the  same  light  as  choses  in  action.     The 

attitude  of  the  Common  Law  Courts  is  well  summed  up  in  the 

leading  Lampet's  Case,  decided  by  the  full  Court  of  Common 

Pleas  in  the  year  1612,^  which  was  not  definitely  overruled  until 

the  decision  of  the  House  of  Lords  in    Theobalds  v.  Duffry,  in 

1724.9 

Meanwhile,   however,  the  completeness  of  the  common  law 

^8  &  9  Vict.  c.  116.  *S.  55. 

"  17  &  18  Vict.  0.  120.  8  57  &  58  Vict.  c.  CO. 

»  S.  18.  '  Ante,  pp.   175,  176,  240,  241,  275. 

*  S.  37.  8  10  Rep.  46b. 

»9  Mod.  102. 


NEW  FORMS  OF  PERSONAL  PROPERTY    ^95 

rule  had  been  broken  down  in  more  than  one  direction.  It  is 
Break-down  ^^^^^>  ^^^  example,  that  choses  in  action  were  rec- 
of  Common  ognized  as  being  devisable  by  will  early  in  the  seven- 
teenth century ;  for,  in  the  case  of  Gorge  v.  Chancey,^ 
decided  in  the  year  1639,  it  was  freely  admitted,  that  even  a 
married  woman  could  bequeath  a  chose  in  action  which  formed 
part  of  her  separate  estate.  Obviously,  in  such  a  case,  for  reasons 
previously  given,  the  Common  Law  courts  would  have  very  little 
opportunity  of  interposing  their  veto ;  for,  if  they  refused  to 
recognize  the  title  of  the  legatee,  the  Court  of  Chancery  could 
be  appealed  to. 

Again,  the  strictness  of  the  common  law  rule  had  been  cir- 
cumvented by  the  practice  of  appointing  the  intended  assignee  of 
a  chose  in  action  the  attorney  of  the  assignor,  and  thus  enabling 
him  to  sue  the  debtor  in  the  assignor's  name.  That  this  device 
was  known  as  early  as  1641,  is  shown  by  the  judgment  of  the 
Lords  Commissioners  in  E.  oj  Suffolk  v.  Greenvil,^  decided  in  that 
year.  But  the  drawback  to  it  was,  that  the  death  of  the  assignor 
revoked  the  power  of  attorney,  and  destroyed  the  assignee's 
title,  at  least  at  law.^ 

But  the  most  hopeful  way  of  escape  was  through  the  doors 
of  a  Court  of  Equity ;  and,  soon  after  the  middle  of  the  seven- 
Equitable  teenth  century,  it  becomes  clear  that  the  common 
ssignments  |^^  ^^j^  prohibiting  alienation  is  being  set  at  nought 
by  Chancery.  The  case  of  Hurst  v.  Goddard  ^  shows  a  slight 
inclination  to  restrict  the  help  of  the  Court  to  cases  in  which  the 
alleged  assignment  was  really  made  to  complete  an  informal 
title ;  as  where  a  husband  sued  as  his  wife's  administrator,  or 
where  the  alleged  chose  in  action  was  in  fact  a  trust.  But  the 
passing  of  the  Statute  of  Frauds,  which  clearly  recognized  the 
assignability  of  trusts,^  must  have  rendered  the  Court's  assistance 
of  little  value  in  such  cases ;  and,  in  fact,  it  becomes  clear,  as 
early  as  1680,  that  Chancery  will  recognize  even  verbal  assign- 
ments of  legal  choses  in  action,  such  as  bond  debts,^  or,  at  length, 
even  simple  contract  debts,^  and  that  it  will  treat  such  assign- 

^  1  Rep.  in  Cha.  67.  ^  3  Rgp.  Cha.  50. 

'  Mitchell  V.  Eades  (1700)  Pre.  Cha.  125.  (The  report  in  2  Vern.  391  is  defective 
on  this  point.) 

*  (1670)  1  Cha.  Ca.  169.  ^  29  Car.  II  (1677)  c.  3,  s.  9. 

6  Fashion  v.  Atwood  (1680)  2  Cha.  Ca.  6,  38.     (Lord  Nottingham.) 
'  Mitchell  V.  Eades  (1700)  Pre.  Cha.  125. 


296    A  SHORT  HISTORY  OF  ENGLISH  LAW 

ments  as  binding,  even  on  the  creditors  in  the  subsequent  bank- 
ruptcy of  the  assignor.^  At  the  same  time,  Chancery  is  fully  alive 
to  the  risks  of  the  proceeding,  and  lays  it  down  repeatedly,^  that 
the  assignee  takes  subject  to  all  'equities,'  i.e.  claims  by  the  party 
liable  against  the  assignor,  arising  before  notice  of  the  assignment 
was  received  by  the  debtor.  Subject,  however,  to  this  reservation, 
Equity  will,  if  the  chose  in  action  is  enforceable  in  Chancery, 
allow  the  assignee  to  sue  as  plaintiff  there ;  or,  if  it  is  '  legal,' 
i.e.  enforceable  only  in  a  Common  Law  court,  compel  the  as- 
signor to  allow  the  assignee  to  sue  in  his  (the  assignor's)  name, 
on  proper  indemnity  for  costs. 

But  the  equitable  doctrine  of  the  assignability  of  choses  in 
action  was  at  one  time  subject  to  the  alleged  limitation,  that  it 
Valuable  ^r^s  only  effectual,  even  in  Equity,  when  made  for 
tion  valuable    consideration.     The    limitation    is    stated 

by  the  Lords  Commissioners,  in  E.  of  Suffolk  v.  Greenvil,^  and 
repeated  by  Lord  Keeper  Bridgman  in  an  anonymous  case  of 
1675.'*  The  argument  in  favour  of  the  limitation  seems  to 
have  been,  that  a  so-called  assignment  in  equity  operated  only 
as  an  agreement  to  assign,  and  that,  according  to  its  well-known 
doctrine,  Equity  would  not  enforce  a  voluntary  agreement,  even 
under  seal.^  But  the  fallacy  of  this  reasoning  at  least  as  pretend- 
ing to  general  application,  was  soon  apparent.  Where  the  assign- 
ment was  of  a  contingency  or  possibility,  then,  no  doubt,  accord- 
ing to  current  ideas,  there  could  be  nothing  more  than  an  agree- 
ment to  assign,  and  the  doctrine  of  valuable  consideration  applied.'^ 
But  where  the  debt  or  other  liability  was  actually  due,  the 
reasoning  did  not  apply ;  and  it  is  doubtful  if  the  requirement  of 
valuable  consideration  was  ever  enforced  in  such  a  case.  At 
any  rate,  if  it  was,  it  soon  ceased  to  be ;  for  in  Atkins  v.  Daubeny, 
decided  in  1714,^  the  voluntary  assignment  of  a  bond  was  sup- 
ported, and  in  Carteret  v.  Paschal,^  it  was  admitted  by  all  parties, 
though  it  was  vital  to  the  decree,  that  '  if  a  man  in  his  own  right 

^Peters  v.  Soame  (1701)  2  Vern.  438. 

2  Ashcomb's  Case  (1674)  1  Cha.  Ca.  232  ;  Coles  v,  Jones  (1715)  2  Vern.  692.  (For 
this  reason  it  was  usual,  in  Equity,  to  make  the  assignor  a  party,  in  case  questions 
between  him  and  the  debtor  should  arise.) 

M1641)  3  Rep.  Cha.  .50.  *2  Freem.  Cha.   145.  ^  Ante,  p.  217. 

«  D.  of  Chamlos  v.  Talbot  (1731)  2  P.  Wms.,  at  p.  610.  (This  was  the  whole 
point  in  Tailhy  v.  Official  Receiver  (1888)  L.R.  13  App.  Ca.  523,  sometimes  quoted 
in  support  of  the  exploded  doctrine.) 

-•  1  Eq.  Ca.  Ab.  45.  8  (1733)  3  p   Wms.  198. 


NEW  FORMS  OF   PERSONAL  PROPERTY    297 

be  entitled  to  a  bond,  or  other  chose  en  action,  he  may  assign  it 
without  any  consideration.'  At  length,  in  Bates  v.  Dandy, ^ 
Lord  Hardwicke  gave  the  finishing  stroke  to  the  doubt  by  laying 
it  down,  that,  though  a  husband  may  not  dispose  of  his  wife's 
chose  in  action  without  a  valuable  consideration  (because  his 
right  is  only  a  possibility)  '  yet  he  may  release  the  wife's  bond 
without  receiving  any  part  of  the  money.'  A  similar  doubt  arose 
later  on  the  subject  of  '  imperfect  declarations  of  trust  ' ;  ^  but 
it  should  have  been  seen  that  the  same  distinction  applied  there, 
viz.  that  such  a  disposition  can  only  be  enforced  as  an  agreement 
to  make  a  proper  settlement,  and,  as  such,  it  requires  a  valuable 
consideration.  Thus  the  framers  of  the  Judicature  Act,^  in 
making  debts  and  other  legal  choses  in  action  assignable  at  law, 
without  requiring  a  valuable  consideration,  were  following  sound 
historical  precedent.  Had  they  adopted  the  opposite  course, 
and  required  a  valuable  consideration,  it  would  have  been  im- 
possible to  make  a  valid  legal  gift  inter  vivos  of  any  chose  in  action 
for  which  a  special  form  of  transfer  had  not  been  provided. 

This  last  exception  is,  no  doubt,  a  wide  one ;  for,  in  fact,  many 
of  the  most  important  choses  in  action  are  subject  to  special 
rules  in  this  respect.  Thus,  negotiable  instruments  are  trans- 
ferable, according  to  the  rules  of  the  Law  Merchant,  adopted  into 
English  Law,  by  delivery  or  indorsement.^  Copyrights,  patents, 
shares  and  stock,  were  at  early  dates  made  transferable  at  law 
by  special  statutory  forms.  Probably,  however,  they  are  all 
(with  the  exception  of  negotiable  instruments)  assignable  in 
Equity  (i.e.  as  against  all  persons  but  purchasers  for  value  without 
notice)  by  mere  word  of  mouth. ^ 

1  (1741)  2  Atk.,  at  p.  208. 

2  Ellison  V.  Ellison  (1802)  6  Ves.,  at  p.  662,  per  Lord  Eldon  ;  Kekewich  v.  Manning 
(1851)  1  De  G.  M.  &  G.,  at  p.  187,  per  Knight  Bruce,  L.J. 

^Judicature  Act,  1873,  s.  25  (6). 

*  It  seems  to  have  been  Lord  Somers,  in  an  anonymous  case  of  1697  (Comyns, 
43)  who  refused  to  disturb  the  mercantile  rule  of  negotiability,  as  distinct  from  mere 
assignability,  by  issuing  an  injunction  against  a  bond  fide  holder  for  value. 

^  Brandt  v.  Dunlop  [1905]  A.C.,  at  p.  462,  expressions  of  Lord  Macnaghten. 


CHAPTER   XVII 
CONTRACT  AND  TORT  IN  MODERN  LAW 

THE  decision  in  Slade's  Case,  explained  in  a  previous  chapter,^ 
to  the  effect  that  '  every  contract  executory  imports  in 
itself  an  assumpsit,'  seemed  to  have  put  the  coping  stone 
on  the  edifice  of  the  law  of  simple  contract,  which,  as  we 
have  seen,  had  been  reared  with  so  much  pains  in  the  fifteenth 
and  sixteenth  centuries.  Now  it  appeared  to  be  beyond  question, 
that  every  promise  of  a  lawful  character,  given  in  exchange  for  a 
valuable  consideration,  by  a  person  of  full  legal  capacity,  amounted 
to  a  legally  enforceable  contract.  Whatever  view  may  be  taken 
of  the  suitability  of  'consideration'  as  the  test  of  simple  contract, 
it  cannot  be  denied  that  it  has  the  singular  merit  of  appealing  to 
the  average  man,  and,  further,  of  being  remarkably  easy  for  a 
Court  mainly  concerned  with  material  interests  to  apply.  It 
avoids  all  difficult  and  unsatisfactory  enquiries  about  intention 
and  other  mental  elements ;  and  substitutes  a  broad  external 
standard  of  the  kind  beloved  by  the  Common  Law.  There  was 
at  one  time  a  theory,  that  valuable  consideration  owed  its  origin 
to  the  influence  of  Equity.  Anything  more  unlike  an  equitable 
doctrine  it  would  be  impossible  to  conceive ;  although,  as  we 
have  also  seen,^  Equity  did  not  refuse  to  adopt  it  in  cases  to 
which  it  had  already  been  applied  by  the  courts  of  Common 
Law.  To  have  done  otherwise  would  have  been  to  open  a  feud 
between  the  two  jurisdictions  upon  a  fundamental  principle  of 
wide  application. 

It  was,  doubtless,  the  rapid  increase  «j  the  popularity  of  the 
action  of  Assumpsit,  following  upon  the  decision  in  Slade's  Case, 
Statute  of  that  led  to  the  enactment  of  the  celebrated  provisions 
with  regard  to  the  evidence  for  simple  contracts  con- 
tained in  the  Statute  of  Frauds.  By  the  terms  of  that  statute,  no 
action  is  to  be  brought  on  any  contract  or  promise  falling  under 

>  (1603)   4  Rep.  92b.     Ante,  p.  140.  "  Ante,  pp.  216,  217. 


CONTRACT  AND  TORT  IN  MODERN  LAW    299 

any  one  of  five  important  classes  of  transactions ;  unless  such 
transaction  has  been  embodied  (not  necessarily  at  the  time  of 
entering  into  it)  in  some  writing  signed  by  the  party  sought  to 
be  charged,  or  his  agent.  These  five  classes  of  transactions  are  — 
(1)  promises  by  executors  or  administrators  to  be  personally 
responsible  for  the  obligations  of  their  deceased,  (2)  promises  in 
the  nature  of  guarantees,  (3)  agreements  made  in  consideration 
of  marriage,  (4)  contracts  'or  sales'  of  land,  tenements,  or  heredit- 
aments or  any  interest  in  or  concerning  them,  and  (5)  agreements 
not  to  be  performed  within  the  space  of  one  year  from  the  making 
thereof.^  Further,  in  a  later  section,^  the  Act  laid  it  down,  that 
no  contract  for  the  sale  of  any  goods,  wares,  or  merchandizes 
for  the  price  of  £lO  sterling  ^  or  upwards  should  be  '  allowed  to  be 
good,'  unless  there  should  be  acceptance  and  receipt  of  at  least 
part  of  the  goods,  or  giving  of  earnest  or  part  payment  by  the 
buyer,  or  some  memorandum  in  writing  of  the  kind  just  described. 
Owing  to  the  difference  in  the  wording  of  the  two  sections,  it  was 
at  one  time  thought  that  the  later  (s.  16)  actually  nullified  con- 
tracts not  conforming  to  its  provisions ;  while  it  has  always 
been  admitted  that  the  earlier  (s.  4)  is  procedural  only,  i.e.  that 
a  contract  not  conforming  to  it  is  merely  unenforceable  by 
action,  and  not  invalid  altogether.^  But  this  doubt  has  been 
finally  resolved  by  the  substituted  section  4  of  the  Sale  of  Goods 
Act,  1893,''  which,  in  repealing  section  16  of  the  Statute  of  Frauds, 
adopts  the  wording  of  section  4  of  that  statute.  In  order  to 
comply  with  the  requirements,  of  the  sections,  all  the  essential 
features  of  the  contract  must  be  expressed  in  the  writing ;  ^ 
except  that,  (1)  by  virtue  of  the  Mercantile  Law  Amendment 
Act,  1856,^  the  consideration  for  a  contract  of  guarantee  need 
not  be  embodied  in  it  (though  of  course  there  must  be  a  considera- 
tion unless  the  contract  is  under  seal),  and  (2)  the  price  need  not 

1  29  Car.  II,  c.  3,  s.  4.  2  Ibid.,  s.  16. 

3  By  the  Statute  of  Frauds  (Amendment)  Act,  1828,  s.  7  (9  Geo.  IV,  c.  14) 
value  was  substituted  for  price,  and  the  section  made  to  apply  to  'future  goods,'  i.e. 
goods  not  in  existence,  or  not  ready  for  delivery,  when  the  contract  of  sale  was 
made.  It  had  formerly  been  suggested,  that  such  a  contract  was  a  contract  of 
employment,  not  of  sale.  These  alterations  are  now  embodied  in  the  Sale  of  Goods 
Act,  1893,  s.  4. 

*  E.g.  it  may  cause  the  property  in  goods  to  pass,  or  be  used  as  a  defence  or 
set-off. 

6  56  &  57  Vict.  c.  71. 

«  Wain  V.   Warlters  (1804)  5  East,   10. 

'  19  &  20  Vict.  0.  97,  s.  3. 


300    A   SHORT  HISTORY  OF  ENGLISH  LAW 

appear  in  the  note  of  a  contract  of  sale,  unless  it  was  actually 
expressed  in  making  the  contract.^ 

The  provisions  of  ss.  4  and  16  of  the  Statute  of  Frauds  have 
been  the  subject  of  much  litigation ;  but  the  story  of  that  liti- 
gation, which  is  mainly  concerned  with  pure  details,  cannot  find 
a  place  in  a  condensed  history  like  the  present.  A  far  more 
interesting,  if  less  easily  intelligible  chapter  in  the  development  of 
the  simple  contract,  now  demands  some  attention ;  for,  with  its 
conclusion,  the  theory  of  the  simple  contract  may  be  said  to 
have  become  virtually  complete. 

A  substantive  reform  which  has,  like  so  many  legal  reforms, 
been  accomplished  by  the  indirect  machinery  of  legal  procedure, 
is  always  liable  to  the  danger  of  being  defeated  by  some  slight 
imperfection  of  that  machinery,  or  some  trifling  defect  in  the 
logic  of  technical  process.  This  danger  threatened  the  law  of 
simple  contract  when  it  was  turned  on  to  the  subject  of  bailments, 
one  of  the  very  oldest  and  most  important  branches  of  the  Com- 
mon Law. 

The  word  '  bailment'  is  one  of  the  numerous  words  which, 
originally  used  in  a  wide  and  general  sense,  have  gradually 
acquired  a  special  technical  meaning.  Originally, 
a  '  bailment'  was  simply  a  delivery  or  handing  over 
of  any  kind  {hailler,  whence  our  word  'ball'),  whether  of  body, 
land,  or  goods.  In  connection  with  land,  it  retains  its  signifi- 
cance in  the  country  of  its  birth,  where  the  hail  a  cens  is  a  common 
interest  at  the  present  day.  In  England,  for  reasons  alluded  to 
elsewhere,^  it  had  first  been  confined  to  the  subject  of  movables, 
and  then  to  a  particular  kind  of  delivery  of  movables,  viz.  the 
delivery  on  condition  of  return.  As  we  have  seen,^  it  was,  in 
this  capacity,  fully  recognized  as  an  important  legal  transaction 
in  the  fourteenth  century ;  when  the  remedies  of  Detinue  and 
Trover  were  invented  to  protect  it. 

The  late  Professor  Ames,  in  those  articles  of  his  to  which  we 
owe  so  much,  insisted  ^  that  Detinue  was  really  a  contractual 
action ;  because  it  was  brought  on  the  promise  to  return  the 
goods.  Now,  apart  from  the  fact  that  the  remedy  of  Detinue 
is  far  older  than  the  recognition  of  simple  contract  by  the  King's 

» Hoadly  v.  McLaine  (1834)  10  Bing.  482. 

'Ante,  pp.  123-126.  ^  Ante,  pp.  134,   141. 

*  Select  Essays  in  Anglo-American  Legal  History,  III,  433,  &c.  , 


CONTRACT  AND  TORT  IN  MODERN  LAW    301 

Courts,  and  that  its  connection,  through  the  action  of  Debt, 
with  the  real  action  to  recover  land,  can  easily  be  traced,^  it 
seems  difficult,  in  the  face  of  the  controversy  now  to  be  described, 
to  hold  the  view  that,  even  in  the  seventeenth  century.  Detinue 
was  regarded  as  an  action  of  contract.  It  was,  in  fact,  simply 
an  action  to  recover  the  goods  of  the  plaintiff  in  the  hands  of  the 
defendant,  who  refused  to  give  them  up. 

The  truth  of  this  view  appears  nowhere  more  clearly  than  in 
the  famous  case  of  Southcote  v.  Venner,'^  decided  in  1601.  In 
Southcote's  t^^^t  case,  the  plaintiff  brought  Detinue  for  goods 
Case  delivered  to  the  plaintiff  to  keep  safely.     The  de- 

fendant pleaded  that  he  had  been  robbed  of  them  by  J.  S.  But 
the  Court  set  aside  the  plea  as  irrelevant  to  a  claim  in  Detinue ; 
*  for  he  (the  defendant)  hath  his  remedy  over,  by  Trespass,  or 
Appeal,  to  have  them  again.'  In  other  words,  the  action  was 
not  on  an  implied  promise  of  a  modified  nature  (or,  as  the 
Court  put  it,  '  a  special  bailment  ')  ;  it  was  a  strict  action 
of  right. 

Southcote  s  Case,  which  was  in  the  highest  degree  favourable 
to  bailors,  would,  it  may  be  imagined,  have  definitely  conse- 
crated the  action  of  Detinue  as  the  proper  remedy  in  bailment. 
But  in  fact,  there  were  weighty  counter-reasons  why  plain- 
tiffs, despite  its  apparent  attractions,  should  turn  from  it  to 
the  newer  remedy  of  Assumpsit,  if  the  latter  could  possibly  be 
mioulded  to  meet  the  facts.  For,  at  this  time.  Detinue  was 
looked  upon  as  an  action  of  Tort ;  and  the  maxim  actio  pomalis 
moritur  cum  persona  would  rule  it  out  in  many  cases.^  More 
serious  still,  the  defence  of  '  wager  of  law  '  was,  as  we  have  seen,"* 
open  to  the  defendant  in  Detinue ;  and  that  defence  was  rapidly 
becoming  a  farce.  In  fact.  Detinue  was  a  discredited  form  of 
action  by  the  end  of  th^  sixteenth  century. 

It  is  hardly  surprising,  therefore,  to  find  a  distinct  effort  on  the 
part  of  bailors,  at  the  very  commencement  of  the  eighteenth 
century,  to  seek  a  remedy  by  the  new  and  highly  popular 
action  of  Assumpsit.  The  form  did  not,  at  first  sight,  present 
any  serious  difficulty.  It  was  easy  to  allege  an  imaginary 
promise  by  the  bailee  to  return  the  goods ;    a  promise  which  a 

^  Ante,  pp.  55-57.  2  4  Rgp.  83;    Cro.  Eliz.  815. 

^  Of  course  the  statute  of  1330  (4  Edw.  Ill,  c.  7)  would  not  help  the  bailor's 
executor  in  the  event  of  the  bailor's  death ;  because  that  only  referred  to  Trespasses. 
*  Ante,  p.  141. 


302    A   SHORT   HISTORY  OF  ENGLISH  LAW 

jury  could  imply  from  the  mere  fact  of  the  bailment.  The 
difficulty  came  in  when  the  question  arose  as  to  the  precise  nature 
of  the  implied  promise.  Had  the  bailee  promised  to  return  in  all 
events  :  i.e.  to  insure  ?  Or  had  he  merely  promised  to  do  his 
best,  to  avoid  negligence,  or  what?  And,  finally,  how  was  the 
new  doctrine  of  '  valuable  consideration  '  to  be  applied  to  this 
iniaginary  promise?  In  some  kinds  of  bailments,  e.g.  bailments 
in  fact  made  for  the  benefit  of  the  bailee,  it  might  not  be  difficult 
to  imply  a  promise  for  valuable  consideration.  But  what  if  the 
bailment  were  solely  for  the  benefit  of  the  bailor  ? 

It  was  precisely  these  questions  which  gave  rise  to  the  well- 
known  judgments  in  the  leading  case  of  Coggs  v.  Bernard,  de- 
Coggs  V.  cided  in  1703,^  which  was  an  action  of  Assumpsit, 
Bernard  ^^^  ^^  Detinue;  and,  though  Lord  Holt's  laudable 
effort  to  dispose  of  them  all  at  once  was  hardly  successful,  yet 
the  case  is  memorable  as  establishing  two  points.  In  the  first 
place,  it  clearly  adopts  the  doctrine  of  the  implied  promise, 
based  (if  on  nothing  else)  on  the  detriment  suffered  by  the 
plaintiff  in  parting  with  his  goods.  In  the  second,  it  decides 
that  the  extreme  rule  of  liability  laid  down  in  SoidJicote's  Case 
cannot  be  imported  into  the  new  doctrine  of  contractual  bailment. 
The  first  conclusion  has  since  been  decisively  affirmed  in  the 
ease  of  Bainhridge  v.  Firvistone^  and  other  decisions.  The 
latter  is  being  slowly  applied  by  the  numerous  decisions  which, 
from  time  to  time,  settle  the  various  rules  of  a  bailee's  liability 
in  differing  circumstances ;  ^  thus  fulfilling  Lord  Holt's  modest 
suggestion,  that  he  had  '  stirred  these  points,  which  wiser  heads 
in  time  may  settle.'*  And  thus,  in  effect,  the  action  on  the 
simple  contract  once  more  enlarged  its  boundaries,  by  incorporat- 
ing the  important  subject  of  bailments.  But  it  is  worthy  of 
notice  that,  even  so  late  as  1781,  Sir  William  Jones,  in  his  famous 
Essay  on  the  Law  of  Bailment,  could  define  ^  a  bailment  as  a 
*  delivery  of  goods,'  not  on  a  promise,  but  *  on  a  condition.' 
The  difference  between  a  promise  and  a  condition  is,  of  course, 
familiar  to  all  lawyers. 

But,  though  the  theory  of  the  simple  contract  may  be  said  to 

1  2  Ld.  Raymond,  909.  « (1838)  8  A.  &  E.  743. 

'  These,  so  far  as  they  have  at  present  gone,  will  be  found  set  out  in  the  Digest  of 
English  Civil  Law,  edited  by  the  author;  see  Bk.  II,  Pt.  II  (by  R.  W.  Lee,  §§  434, 
439,  449,  550-554,  562). 

*  2  Ld.  Raymond,  at  p.  920.  *  1st  edition,  p.  1. 


CONTRACT  AND  TORT  IN  MODERN  LAW    303 

have  been  now  complete,  another  enlargement  of  the  practical 
'  Breach  of  scope  of  the  doctrine  was  effected  by  the  adoption  of 
romise  ^j^^  action  for  breach  of  promise  of  marriage.  This, 
again,  was,  virtually,  an  incursion  into  the  province  of  the 
ecclesiastical  courts.  Even  after  the  Reformation,  the  proper 
remedy  for  the  aggrieved  swain  was  a  suit  in  the  spiritual  court, 
causa  matrimonii  proelocuti.  Upon  satisfactory  proof  of  the 
facts,  the  spiritual  tribunal  would  order  the  defendant  to  celebrate 
the  marriage  in  the  face  of  the  Church,  and  even,  if  necessary, 
dissolve  a  marriage  with  another  person  contracted  subsequently 
to  the  promise.  But,  in  the  fatal  epoch  of  the  Interregnum, 
when  the  Church  courts  were  closed,  and  the  ecclesiastical  remedy 
thereby  suspended,  disappointed  plaintiffs  began  to  resort  to 
the  secular  tribunals,  and  to  bring  the  action  of  Assumpsit,  as 
on  an  ordinary  contract.  At  the  Restoration,  there  was  some 
little  hesitation  on  the  part  of  the  Common  Law  judges  about 
recognizing  the  new  action ;  but  at  length,  in  Dickison  v.  Hol- 
croft,^  decided  in  1674,  the  Court  of  King's  Bench,  despite  the 
strenuous  opposition  of  Chief  Justice  Vaughan,  held  the  action, 
even  when  founded  merely  on  mutual  promises,  to  be  good. 

Almost  immediately^  after  this  decision,  the  new  action  was 
threatened  from  two  quarters  by  the  provisions  of  the  Statute  of 
Frauds.  Was  it  founded  on  an  'agreement  made  upon  con- 
sideration of  marriage,'  or  was  it  an  'agreement  that  is  not  to  be 
performed  within  the  space  of  one  year  from  the  making  thereof '  ?  ^ 
In  either  case,  it  was  not  actionable  unless  written  evidence  was 
forthcoming.  The  last  alternative  was  not  seriously  discussed ; 
but  it  seemed  at  first  a  strong  thing  to  say  that  an  action  on  a  breach 
of  promise  to  marry  was  not  an  '  agreement  made  upon  considera- 
tion of  marriage.'  Lord  Holt,  however,  appears  to  have  taken  a 
decided  view,  that  the  statute  only  '  intended  agreements  to  pay 
marriage  portions ' ;  ^  and,  in  effect,  after  a  little  hesitation,  it  was 
clearly  decided  that  its  provisions  did  not  apply  to  mutual 
promises  to  marry."*  The  passing  of  Lord  Hardwicke's  Marriage 
Act  of  1753,  which,  as  part  of  its  poHcy  of  insisting  on  the  validity 
only  of  formal  marriages,  expressly  abolished  the  ecclesiastical 
suit  causa  matrimonii  proelocuti,^  rendered  the  civil  remedy  of 

1  3  Keb.  148.  -  29  Car.  II  (1677)  c.  3,  s.  4. 

'  Harrison  v.  Cage  (1698)  1  Ld.  Raym.  386. 

*  Cork  V.  Baker  (1725)  1  Stra.  34;   Horam  v.  Humfreys  (1771)  Lofft,  80. 

*  26  Geo.  II,  c.  33,  s.  13. 


S04     A   SHORT   HISTORY   OF   ENGLISH   LAW 

Assumpsit  still  more  popular ;  and  to  the  present  day  it  plays 
a  large  part  in  the  business  of  the  courts.  Among  its  other  pe- 
culiarities may  be  noticed  the  requirement  of  Lord  Denman's 
Evidence  Act,  1869/  that  an  oral  proof  of  the  promise  to  marry 
given  by  the  plaintiff,  must  be  supported  by  independent  evidence. 

The  passing  of  the  Infants  Relief  Act,  in  1874"  may  perhaps  be 
said  to  have  restricted,  to  a  certain  extent,  the  scope  of  simple 
Contracts  Contract.  By  the  common  law,  the  contracts  of 
of  Infants  q^^  infant  were,  generally  speaking,  voidable  by 
him,  i.e.  he  could  himself  sue  on  them,  but  they  could 
not  be  enforced  against  him.^  He  could  even  repudiate,  on 
coming  of  age,  contracts  of  a  'continuing  nature,'  such  as  tenan- 
cies and  partnerships,  entered  into  by  him  during  infancy ;  but 
if  he  wished  to  do  so,  he  must  exercise  his  right  within  a  reason- 
able time  after  attaining  his  majority.'*  On  the  other  hand,  there 
were  some  contracts,  such  as  contracts  to  pay  a  reasonable  price 
for  necessaries,  and  contracts  clearly  beneficial  to  his  interests, 
which  were  binding  on  an  infant,  in  spite  of  his  nonage ;  ^  and  a 
statute  of  the  year  1855,  the  Infants  Settlements  Act,^  had  en- 
abled male  and  female  infants  to  make  valid  settlements,  with 
the  approval  of  the  Court,  on  their  marriage. 

The  Infants  Relief  Act,  1874,  however,  makes  absolutely 
void  all  contracts  by  an  infant  for  repayment  of  money  lent  or 
to  be  lent,  or  for  goods  supplied  (other  than  necessaries),  and 
all  accounts  stated  with  infants.^  Presumably,  therefore, 
neither  the  infant  nor  the  other  party  can  sue  on  such  contracts ; 
and  their  effect  in  passing  property  is  7iil.  But  the  Act  goes 
further,  and  makes  it  impossible  for  a  person  to  be  sued  on  any 
ratification  made  after  he  comes  of  age,  of  a  promise  given  or  debt 
incurred  by  him  while  an  infant ;  even,  though  there  is  new  con- 
sideration for  the  ratification.^  At  the  same  time,  the  statute 
is  careful  not  to  invalidate  such  contracts  as  by  the  common  law 
were  binding  on  an  infant,  e.g.  contracts  for  necessaries ;  ^  and 
it  has,  apparently,  no  effect  on  the  position  of  contracts  voidable 
at  common  law,  but  not  expressly  made  void  by  the  statute, 

1  32  &  .33  Vict.  c.  68,  s.  2.  -  37  &  38  Vict.  c.  62. 

'  Warwick  v.  Bruce  (1813)  2  M.  &  S.  205  (affd.  in  Exch.  Ch.).  This  rule  applied 
even  to  contracts  to  marry  (Holt  v.  Ward  (1732)  2  Stra.  937). 

*  Edxvards  v.  Carter  [1893]  A.C.  360. 

*  Walter  v.  Everard  [1891]  2  Q.B.  369. 

«  18  &  19  Vict.  c.  43.  '  S.  1.  8  S.  2.  »  S.  1. 


CONTRACT  AND  TORT  IN  MODERN  LAW    305 

except  that  no  alleged  ratification  of  them  after  majority  will 
have  any  operation.  If  the  contract  would  have  been  binding 
without  ratification,  it  will  still  be  valid,  despite  the  Act ;  if  not, 
no  ratification  will  affect  it.  It  may  be  noted  that,  although  a  loan 
to  an  infant  to  purchase  necessaries  would  be  void  under  the  express 
terms  of  the  Act  of  1874,  there  seems  no  reason  to  doubt  that  the 
lender,  according  to  the  equitable  doctrine  of  subrogation,  rec- 
ognized to  apply  to  such  a  case  as  early  as  1719,^  would  still 
be  able  to  stand  in  the  shoes  of  the  person  supplying  the  necessa- 
ries, and  sue  the  infant  for  so  much  of  the  loan  as  had  been  actually 
expended  in  necessaries. 

Finally  on  the  subject  of  the  scope  of  simple  contract,  it  may 
be  mentioned  that,  during  the  nineteenth  century,  the  courts 
Married  and  the  legislature  between  them  completed  that  eman- 
Women  cipation  of  married  women  from  the  medieval  theory 
of  contractual  incapacity,  which,  as  we  have  seen,^  had  already 
been  broken  in  upon  by  the  Chancellors  of  the  preceding  century. 
Thus,  the  cautious  doctrine  of  Hulme  v.  Tenant,^  which  made 
the  bonds  or  other  solemn  engagements  of  a  married  woman 
enforceable  in  Equity  against  her  actual  separate  estate,  was 
extended,  by  the  middle  of  the  nineteenth  century,  to  her  general 
engagements ;  ^  though  the  Court  still  refused  to  apply  it  to 
property  over  which  she  had  merely  a  general  power  of  appoint- 
ment.^ And  in  1866,  a  married  woman's  separate  property  was 
made  liable  for  calls  on  shares  held  by  her.^  Obviously,  after 
this,  the  medieval  theory  had  become  untenable ;  but,  on  the 
passing  of  the  first  Married  Women's  Property  Act,  in  1870,^  the 
only  change  effected  in  this  direction  was  to  make  the  separate 
property  of  a  married  woman  liable  for  her  ante-nuptial  debts, 
thus  relieving  her  husband  from  liability  on  that  head.  This 
Act,  which  greatly  extended  the  separate  property  of  married 
women^  secured  to  them  their  separate  earnings,^  all  personal 
property  coming  to  them  under  intestacy  and  all  sums  not  ex- 
ceeding £200  by  deed  or  will  ^  and  the  rents  and  profits  of  in- 
herited land,^°  and  allowed  them  to  hold,  as  their  separate  estate, 
deposits  in  savings  banks,  stock  in  the  funds,  shares  and  other 

1  Marlow  v.  Pitfield,  1  P.  Wms.  558.  ^  ^^^^^  p_  224. 

3  (1778)   1  Bro.  C.C.  16.  <  Murray  v.  Barlee  (1834)   3  My.  &  K.  209. 

^  Vaughan  v.  Vanderstegen  (1853)  2  Drew.  165. 

«  Matthewman's  Case  (1866)   L.R.  3  Eq.  781. 

7  33  &  34  Vict.  c.  93,  s.  12.  »  S.  1.  »S.  7.  ^°S.  8. 


306    A   SHORT  HISTORY  OF  ENGLISH  LAW 

benefits  in  companies  and  benefit  societies,  and  policies  of  insur- 
ance.^ It  was  slightly  amended  by  a  statute  passed  in  the  year 
1874,-  which  re-imposed  on  the  husband  a  modified  liability  for 
both  the  ante-nuptial  contracts  and  torts  of  his  wife,  to  the 
extent  of  any  property  which  he  might  have  acquired  through  her. 
But  these  cautious  advances  were  quite  overshadowed  by  the 
passing,  in  the  year  1882,  of  the  present  Married  Women's 
Property  Act.^  That  statute  not  merely  makes  all  the  property 
of  a  woman  married  after  31st  December  1882,^  and  the  property 
of  a  woman  previously  married  accruing  to  her  after  that  date,^ 
her  separate  property ;  but  it  completely  emancipates  her  from 
her  medieval  incapacities  with  regard  to  alienation  and  contract,® 
and  gives  her  all  legal  remedies  for  the  protection  of  her  rightsJ 
It  is  true,  that  her  contractual  and  tortious  liabilities  can  only  be 
enforced  against  her  to  the  extent  of  her  separate  estate ;  * 
and  only  to  that  extent  in  so  far  as  such  estate  is  not  '  restrained 
from  anticipation,'  ^  in  manner  previously  explained. ^'^  But 
her  personal  capacity  is  complete ;  and  a  narrow  construction 
which  restricted  it  to  cases  in  which  she  had  separate  estate 
at  the  time  of  incurring  the  liability,  ^^  has  been  definitely  over- 
ruled by  an  amending  statute.^-  On  the  other  hand,  her  husband 
still  remains  liable,  to  the  extent  of  property  which  he  may  have 
acquired  through  her,  for  his  wife's  ante-nuptial  liabilities  (con- 
tractual and  tortious) ;  ^^  and  his  medieval  liability  for  the  torts 
of  his  wife  committed  during  marriage,  has  not  been  removed 
by  the  Acts.^^  Apparently,  however,  his  former  personal  liability 
for  her  ante-nuptial  torts  is  abolished  by  the  express  provisions 
on  that  subject  of  the  principal  Act.^^  As  for  a  husband's  liability 
for  his  wife's  contracts  entered  into  during  marriage,  that  stands 
where  it  did,  viz.  on  the  footing  of  agency.  And  so  a  trades- 
man who  in  fact  gives  credit  to  the  husband  or  the  wife,  may 
find  himself  unable  to  recover  from  either. ^^ 

^Ss.   2-5,   10.  237  ^  3g  Vict.  c.  50.  ^  45  &  46  Vict.  c.  75. 

*  S.  2.  5  S.  5.  6  s   1,  7  ss.   1    (2),   12. 

»  Scott  V.  Morley  (1887)   20  Q.B.D.   120.  »  S.  19.  ^^  Ante,  p.  225. 

»  PalHser  v.  Gurney  (1887)   19  Q.B.D.  519. 

"  Married  Women's  Property  Act,   1893  (56  &  57  Vict.  c.  6.3)  s.  1. 

"  M.W.P.  Act,   1882,  s.  14. 

".S'erofca  v.  Kattenburg  (1886)  17  Q.B.D.  177;  Earl  v.  Kingscote  [\9QQ]  2  Ch. 
585.  But  the  liability  only  continues  during  the  marriage,  and  is  even  discharged 
by  a  judicial  .separation  (Cuenod  v.  Leslie  [1900]  1  K.B.  8S0).  "  S.  14. 

^*  Paquin  v.  Beauclerk  [1906]  A.C.  148.  (This  case  went  even  to  the  length  of 
deciding  that  the  knowledge  of  the  tradesman  is  immaterial.     Thus,  if  a  tradesman 


CONTRACT  AND  TORT  IN  MODERN  LAW   307 

Apart  from  the  important  subject  reserved  for  the  end  of 
this  chapter,  there  is  not  much  to  record  of  the  Law  of  Tort 
during  the  period  under  review.  The  general  scope  of  the  action 
was  enlarged  by  the  provision  of  the  Civil  Procedure  Act  of 
1833/  which  enabled  the  personal  representatives  of  a  deceased 
person  to  sue  in  Trespass  or  Case  for  any  injury  committed 
against  the  deceased  in  respect  of  his  real  estate  within  six 
months  before  his  death,  and  a  similar  action  to  be  brought 
against  them  in  respect  of  any  wrong  committed  by  their  deceased 
against  the  plaintiff  in  respect  of  the  latter 's  property,  real  or 
personal.  And  it  was  still  further  extended  by  the  provisions 
Accidents  ^^  ^^^^  Fatal  Accidents  Act,  1846,^  commonly  known 
Act  as  Lord  Campbell's  Act,  which,  for  the  first  time  in 

English  legal  history,  allowed  a  civil  action  to  be  brought  for  the 
death  of  a  human  being.  The  statute  declares  that  the  death  of 
the  party  injured  through  the  act  or  default  of  another  shall  not 
exonerate  that  other  from  any  liability  which  would  have  rested 
on  him  for  such  act  or  default  had  the  victim  lived ;  and  the 
statute  applies  even  to  felonious  injuries.  It  is  further  note- 
worthy for  the  fact,  that  the  damages  recovered  do  not  form 
part  of  the  deceased's  estate  (which  would  make  them  liable 
to  his  debts),  but  are  to  be  divided,  according  to  the  decision  of 
the  jury  trying  the  case,  among  his  nearest  relatives,  regardless 
whether  such  relatives  were  in  fact  dependent  upon  the  deceased's 
exertions,  or  not.^  But  only  one  action  will  lie  in  respect  of  the 
same  subject-matter;  and  it  must  be  brought  within  a  year  of 
the  deceased's  death,^ 

Only  one  really  new  action  of  Tort,  viz.  the  action  of  Deceit, 
made  its  appearance  in  this  period ;  if  we  except  the  development 

of   Civil    Conspiracy,    to   be   afterwards   dealt   with. 

The  action  of  Deceit  is  an  example,  like  Maintenance 
and  Malicious  Prosecution,  of  the  extension  to  ordinary  persons 

gives  credit  to  Mrs.  X  believing  either  (1)  that  she  is  a  single  woman,  or  (2)  that  she 
is  acting  as  her  husband's  agent,  he  cannot  recover  from  either  husband  or  wife,  if, 
in  fact,  Mrs.  X  intended  to  contract  as  her  husband's  agent,  but  had  no  authority 
to  do  so.) 

^  3  &  4  Will.  IV,  c.  42,  s.  2.  (The  action  by  the  representatives  must  be  brought 
within  one  year  of  their  deceased's  death ;  the  action  against  the  representatives 
within  six  months  from  their  having  taken  up  the  administration.) 

-  9  &  10  Vict.  c.  93.     (There  was  a  procedural  amendment  in  1864.) 

'S.  2. 

*  S.  3.  (It  was  in  connection  with  the  difficulties  caused  by  this  rule,  that  the 
amending  statute  of  1864  was  passed.) 


808    A   SHORT  HISTORY  OF  ENGLISH  LAW 

of  a  remedy  originally  devised  for  the  benefit  of  the  Crown. 
There  was  a  very  old  Writ  of  Deceit  at  the  common  law ;  ^  but 
it  was  confined,  in  substance,  to  acts  amounting  to  persona- 
tion or  trickery  in  legal  proceedings.  It  is  clear,  however, 
that  liability  for  deceit,  or  fraud,  was  making  its  way  into 
purely  civil  actions  in  the  fifteenth  century  ;  for,  as  we  have  seen,^ 
it  was  frequently  alleged,  as  was  also  negligence,  in  early  actions 
of  Assumpsit.  When  the  necessity  for  such  allegations  dis- 
appeared with  the  definite  recognition  of  '  consideration  '  as 
sufficient  ground  for  Assumpsit,  the  action  of  Deceit  still  lingered 
on  in  connection  with  warranties,  which  it  seemed  difficult  to  class 
as  '  contracts  executory  '  within  the  meaning  of  Slade's  Case? 
Even  so  late  as  1778,  it  could  be  doubted  whether  Assumpsit  lay 
for  breach  of  warranty.^  Ultimately,  however,  these  scruples 
disappeared,  and  with  them  the  action  of  Deceit ;  until  it  was 
revived,  with  great  effect,  as  a  purely  tortious  action,  in 
the  case  of  Pasley  v.  Freeman,  in  1789.^  In  that  case,  the 
defendant  appears  (for  his  actual  words  are  not  given,  the 
case  being  decided  on  the  pleadings)  to  have  assured  the  plaintiff, 
that  one  Falch  was  a  person  who  could  be  trusted  to  pay  for 
certain  goods  which  the  plaintiff  was  asked  to  deliver  to  him  on 
credit.  This  was,  of  course,  very  like  a  guarantee;  but  the 
plaintiffs,  unfortunately,  could  not  sue  on  contract,  as  they  had 
no  written  evidence  to  satisfy  the  Statute  of  Frauds.^  So  they 
framed  their  action  in  pure  tort ;  alleging  that  the  defendant 
'falsely,  deceitfully,  and  fraudulently'  asserted  and  affirmed  the 
solvency  of  Falch,  knowing  him  to  be  untrustworthy ;  that  he 
thereby  caused  the  plaintiffs  to  give  credit  to  Falch ;  that  Falch 
had  failed  to  pay ;  and  that  the  plaintiffs  had  thereby  lost  their 
money.  The  Court,  after  much  hesitation,  allowed  the  validity 
of  the  action,  which  immediately  became  immensely  popular  as  a 
means  of  evading  the  Statute  of  Frauds.  In  the  year  1828, 
however,  the  statute  known  as  Lord  Tenterden's  Act  ^  restrained 
its  activities  in  that  direction,  by  imposing  the  requirement  of 
written  evidence  on  alleged  statements  of  credit  used  to  found 

1  Old  Natura  Brevium,  ff.  50-52.  -  Ante,  pp.  137-138. 

'  Ante,  p.  140.  If  I  warrant  a  horse  as  sound  at  the  time  of  sale,  I  really  promise 
to  pay  damages  if  he  turns  out  to  have  been  unsound  at  that  time.  But  in  form  I 
merely  make  an  assertion. 

*  Stuart  V.    Wilkin.%   Doug.    18.       ^  3  T.  R.  51.         "29  Car.  II  (1677)  c.  3,  s.  4. 

'  Statute  of  Frauds  (Amendment)  Act,  s.  6.  (The  wording  of  the  section  is 
notoriously  peculiar.) 


CONTRACT  AND  TORT  IN  MODERN  LAW   309 

actions;  and  in  Derry  v.  Peek,^  before  alluded  to,  the  House  of 
Lords  further  clipped  its  wings  by  refusing  to  allow  it  to  be 
applied  to  a  mere  innocent,  though  untrue,  misrepresentation, 
or,  as  it  was  often  absurdly  called,  '  equitable  fraud.'  Still, 
despite  these  limitations,  the  action  of  Deceit  can  still  be  brought 
to  recover  damages  suffered  as  the  result  of  credence  placed  in  a 
written  statement  deliberately  false  and  fraudulent,  made  with 
intent  that  the  plaintiff  should  act  upon  it. 

The  action  of  Defamation,  which,  as  we  have  seen,^  had 
definitely  become  a  branch  of  the  Law  of  Torts  at  the  end  of 
_  .  the    preceding    period,    has    undergone    considerable 

modification  in  the  eighteenth  and  nineteenth  centuries. 
Towards  the  close  of  the  former  was  passed,  after  much  agitation, 
the  famous  Libel  Act^  connected  with  the  name  of  Fox;  and, 
though  the  statute  itself  is  confined  to  criminal  proceedings,  it 
appears  to  have  been  extended  by  analogy  to  civil  actions  for 
defamation.^  As  is  well  known,  the  dispute  was,  whether  a 
jury,  in  a  criminal  prosecution  for  libel,  was  entitled  to  consider, 
not  merely  the  question  of  publication,  but  the  question  of  the 
libellous  character  of  the  document  on  which  the  prosecution  was 
based.  The  judges  stoutly  contended  that  this  last  was  a  ques- 
tion of  law,  not  of  fact.  Their  opponents  urged  that,  apart  from 
statements  obviously  defamatory,  it  was  impossible  to  say,  with- 
out knowledge  of  the  surrounding  facts,  whether  a  particular 
statement  suggested  a  particular  innuendo,  or  whether  such  in- 
nuendo, if  really  suggested,  was  defamatory.  The  Libel  Act  of 
1792^  definitely  gave  the  jury  power  to  find  a  general  verdict  of 
'  guilty  '  or  '  not  guilty,'  which  would,  in  effect,  entitle  them 
to  acquit  the  accused,  even  though  he  had  clearly  published  the 
document  upon  which  the  prosecution  was  based. 

In  the  year  1840,  in  consequence  of  the  well-known  proceed- 
ings connected  with  the  case  of  Stockdale  v.  Hansard,^  was  passed 
the  Parliamentary  Papers  Act,^  exempting  absolutely  from  all 
proceedings  for  defamation  the  publishers  of  any  reports,  papers, 
votes,  or  proceedings  ordered  by  either  House  of  Parliament  to 
be  published ;   and,  in  1868,  a  decision  of  the  Court  ^  extended  a 

1  (1889)  L.R.  14  App.  Ca.  337.  2  ^^^g^  pp_   144-147. 

3  32  Geo.  Ill,  c.  60. 

*-Parmiter  v.  Coupland  (1838)  6  M.  &  W.,  at  p.  108. 

«S.  1.  6(1839)    9  A.   &   E.    1.  ^3  &  4  Vict.  c.  9. 

«  Wason  V.    Waller  (1868)   L.R.  4  Q.B.   73. 


310    A   SHORT  HISTORY  OF  ENGLISH   LAW 

qualified  ^  privilege  to  independent  reports  of  Parliamentary 
proceedings.  Lord  Campbell's  Act  of  1843  -  allowed  an  apology 
to  be  pleaded  by  way  of  mitigation  of  damages  in  any  action  of 
defamation ;  and  statutes  of  the  years  1881  and  1888  did  a  good 
deal  to  mitigate  the  hardships  caused  to  the  newly  developing 
energies  of  the  newspaper  press  by  the  survival  of  medieval  rules 
on  the  subject  of  responsibility  for  defamatory  statements.  The 
former  of  these  statutes,  the  Newspaper  Libel  Act,  1881,^  though 
mainly  dealing  with  criminal  prosecutions,  provided  that  a  fair, 
accurate,  and  unmalicious  newspaper  report  of  the  proceedings 
at  a  lawfully  convened  public  meeting  should  be  privileged, 
notwithstanding  that  it  contained  defamatory  reflections,  unless 
the  editor  refused  to  insert,  in  his  next  issue,  a  reasonable  ex- 
planation by  the  party  reflected  upon.  The  latter  statute,  the 
Law  of  Libel  Amendment  Act,  1888,^  goes  considerably  further. 
It  gives  absolute  protection  ^  to  fair  and  accurate  reports  of  judi- 
cial proceedings,  and  qualified  privilege,  on  conditions  similar 
to  those  of  the  Act  of  1881,  to  similar  reports  of  any  meeting  of 
a  local  government  body  which  is  open  to  press  or  public,^  or  of 
proceedings  before  Justices  at  Quarter  Sessions,  and  to  publi- 
cations of  notices  and  reports  issued  by  Government  depart- 
ments, and  published  at  the  request  of  such  departments.  But 
in  neither  case  does  the  statute  authorize  the  publication  of 
blasphemous   or   indecent    matter. 

Finally,  a  statute  of  the  year  1891,  the  Slander  of  Women 
Act,'^  enables  a  woman  to  recover  damages  for  spoken  words 
imputing  to  her  unchastity,  without  proof  of  'special'  damage. 
This  statute  points,  of  course,  to  one  of  the  great  differences 
between  libel  (written  or  printed  defamation)  and  slander  (oral 
defamation).  The  former  always  carries  a  right  to  damages; 
whether  the  plaintiff  can  prove  actual  loss  or  not.  Slander 
(except  where  it  imports  certain  specific  accusations)  does  not ; 
unless  actual  loss  can  be  proved.  This  proof  is,  by  the  nature  of 
things,  sometimes  very  hard  to  come  by ;  especially  where  the 
accusation   is   against   moral,   rather  than   material,   character. 

^  The  difference  between  an  'absolute'  privilege  (such  as  that  given  by  the  Act 
of  1840)  and  a  'qualified'  privilege,  is,  that  the  former  is  complete  bar  to  proceedings, 
■while  the  latter  is  only  a  bar  if  the  plaintiff  cannot  prove  (or,  in  some  rare  cases,  the 
defendant  cannot  disprove)  actual  malice  in  fact  in  the  publication  of  the  defamatory 
statement. 

2  G  &  7  Vict.  c.  96.         '  44  &  45  Vict.  c.  60.  ■'51   &  52  Vict.  c.  64. 

*S.  3.  ^S.4.  '54  &  55  Vict.  c.  51. 


CONTRACT  AND  TORT  IN  MODERN  LAW   311 

The  Act  of  1891,  then,  simply  places  an  accusation,  made  against 
a  woman,  of  imchastity,  in  the  list  of  slanders  'actionable  yer  se,' 
i.e.  without  proof  of  special  damage.  The  statute  has  redressed 
a  grievance  peculiarly  hard.  Before  the  virtual  suppression  of 
the  Church  courts  such  actions  as  those  contemplated  by  the 
statute  could  be  brought  there ;  and  the  Church  would  not 
demand  proof  of  special  damage,  because  an  accusation  of 
incontinence  was  an  accusation  of  sin,  which  was  punishable 
with  penance  and  fine.^  But  incontinence  is  not  a  civil  offence; 
and,  when  the  Common  Law  courts  robbed  the  Church  courts 
of  their  jurisdiction  in  defamation,  they  virtually  left  women 
without  a  remedy  for  this  kind  of  slander.  In  theory,  such 
suits  could  be  maintained  in  the  ecclesiastical  courts  until  the 
year  1855,  when  they  were  expressly  abolished  by  statute.^ 
In  practice,  they  ceased  to  be  common  after  the  beginning  of 
the  nineteenth  century.^ 

A  few  very  simple  words  must  here  be  said  about  the  much- 
disputed  subject  of  the  alleged  Action  of  Negligence.'  With 
the  exception  of  the  action  for  *  negligently  guarding  of 
his  fire,'  ^  there  never  has,  in  form,  been  such  an  action 
in  English  Law ;  and  the  fact  is  significant.  The  individualism 
or  the  cautiousness  of  the  Courts  in  early  times  declined  to 
admit  that  one  person  could  be  legally  liable  to  another  for  mere 
omissions ;  unless  he  had  expressly  or  by  implication  '  under- 
taken '  to  do  the  omitted  acts.  We  have  seen  ^  how  this 
latter  exception  was,  ultimately,  made  the  basis  of  the  law  of 
simple  contract.  About  the  same  time,  the  Court  of  Chancery, 
especially  in  the  matter  of  trusts,  acted  on  the  higher  standard 
of  morality  which  requires,  in  certain  cases,  the  performance  of 
positive  duties,  independently  of  express  contract ;    though,  of 

^  The  ordinary  remedies  in  an  ecclesiastical  court  for  defamation  were  (1)  public 
retractation,  (2)  penance  (usually  remitted),  and  (3)  payment  of  costs.  For  the 
general  doctrine  of  jurisdiction,  see  Harris  v.  Buller  (1798)  1  Hagg.  463  n. 

2  Ecclesiastical  Courts  Act  (18  &  19  Vict.  c.  41). 

'  The  last  case  known  to  the  author  is  Collis  v.  Bale  (1846)  4  Thornton,  Notes  of 
Cases,  540  (in  the  Arches  Court) .  They  were  more  numerous  in  the  country  districts 
than  in  London  {Report  on  Ecclesiastical  Courts,  1831,  Appx.  D,  p.  596). 

*  This  was  a  very  striking  exception ;  for,  by  the  common  law,  a  man  was  liable 
for  all  damage  done  by  fire  which  spread  from  his  premises ;  whether  he  caused  it  to 
be  lit,  or  it  had  come  from  other  sources  (Tubervil  v.  Stamp  (1697)  1  Salk.  13) .  But 
a  statute  of  1774  (14  Geo.  Ill,  c.  78,  s.  86),  still  in  force,  exempts  from  liability  the 
person  on  whose  premises  a  fire  may  '  accidentally  begin. '  Blackstone  gives  a  curious 
version  of  the  statute   {Comm.  I,  419). 

^  Ante,  pp.  137,   138. 


Negligence      ,  .    ^       ,  ^ 


312    A  SHORT  HISTORY  OF  ENGLISH  LAW 

course,  a  trust,  voluntarily  undertaken,  is  not  unlike  a  contract. 
Once  more,  criminal  law,  slowly  and  cautiously,  began  to  hold 
people  responsible,  in  certain  exceptional  cases,  for  mere  non- 
feasance.^ But  the  Common  Law  courts  remained  content  with 
repressing  active  wrong-doing ;  and,  in  all  their  long  record, 
there  is  hardly  a  single  case  of  Tort  founded  on  mere  omissions, 
before  the  end  of  the  eighteenth  century,^  unless  we  count  the 
well  known,  but  really  unimportant,  decision  in  Ashby  v.  White,^ 
as  an  exception.  That  decision,  which  was  certainly  not  free 
from  party  prejudice,'*  laid  it  down,  that  when  an  individual  was 
entitled,  by  statute  or  common  law,  to  demand  of  a  public  offi- 
cial the  performance  of  a  ministerial  duty,  wilful  refusal  by  the 
official  to  perform  the  duty  is  a  ground  of  action  by  the  individual, 
though  no  special  damage  is  proved.  x\pparently  very  sweeping 
in  its  scope,  the  decision  has  really  been  barren  of  results ;  only 
some  eight  subsequent  decisions  involving  the  principle  laid 
down  being  reported.^ 

With  the  appearance  of  the  nineteenth  century,  however,  the 
introduction  of  new  methods  of  transit,  new  methods  of  manufac- 
ture, and  other  novel  conditions,  compelled  a  revision  of  the  laissez- 
faire  attitude  of  the  Courts ;  and  gradually  they  began  to  hold 
people  responsible  in  Tort  for  mere  omissions,  where  such  persons 
had  placed  themselves  in  positions  inviting  confidence,  or  in- 
duced others  to  handle  dangerous  materials,  or  take  part  in 
dangerous  processes.  But  the  limits  of  tortious  responsibility 
for  mere  omissions  are  still  extremely  narrow ;  ^  and  by  far  the 
greater  part  of  the  vast  number  of  cases  under  the  head  of  '  neg- 
ligence '  in  textbooks  and  Digests,  will  be  found  to  be  cases  of 
contract  and  trust. 

Beyond  all  question,  however,  the  most  important  develop- 
ment of  the  Law  of  Tort  in  this  period  is  connected  with  the 

^  Examples  are  to  be  found  in  the  early  Poor  Law  statutes  ;  and  the  Courts,  in- 
dependently of  statute,  began  to  hold  'wilful  neglect'  as  equivalent  to  act  in  homicide 
cases. 

-  L.Q.R.  xxix,  pp.  159-166,  by  the  author. 

'  (170;3)   2   Ld.   Raym.  938. 

''  The  facts  were,  that  a  returning  officer  wrongfully  refused  to  record  the  plaintiff's 
properly  tendered  vote  at  a  Parliamentary  election. 

*  These  are  collected  in  Digest  of  English  Civil  Law,  §  1019.  For  actions  in 
respect  of  special  damage  caused  by  failure  to  perform  statutory  duties,  see  §  726  of 
the  same  work. 

*  They  are  set  out,  with  tolerable  completeness,  in  the  Digest  of  English  Civil  Law, 
§§  727-734  (by  J.  C.  Miles).  At  the  end  of  Bk.  II  will  be  found  a  brief  Excursus  on 
the  subject. 


CONTRACT  AND  TORT  IN  MODERN  LAW    313 

attitude  of  the  State,  especially  as  represented  by  the  Courts, 
Labour  towards    artizaiis    and   labour    organizations    during 

tionsand'the  the  last  century.  For  reasons  which  will  shortly 
^^^  appear,  it    is    impossible,    in    dealing    with    such    a 

subject,  to  avoid  including,  not  merely  the  Law  of  Contract 
and  Tort,  but  Criminal  Law;  for  the  three  branches  are  in- 
extricably mixed  up  together.  Unhappily,  the  subject  is  one 
which  has  aroused  much  feeling;  and  nothing  beyond  a  bare 
statement  of  the  facts  would  be  advisable. 

The  system  of  servile  or  forced  labour  which  had  existed 
in  England  from  the  time  of  the  Norman  Conquest  until  the 
middle  of  the  fourteenth  century,  was  definitely  broken  up  by 
the  occurrence  of  that  cardinal  event  in  medieval  history,  the 
visitations  of  the  plague  known  as  the  '  Black  Death,'  followed 
as  they  were,  throughout  almost  the  whole  of  Western  Europe, 
by  armed  risings  of  the  peasantry.  The  latter,  whose  value 
had  risen  to  a  premium,  owing  to  the  frightful  ravages  of  the 
Plague,  burst  the  bonds  of  the  manorial  system,  and  refused  to 
work  except  for  high  wages. 

In  England,  the  answer  of  the  State  to  what  was,  in  effect, 
a  social  and  political  revolution  of  the  first  magnitude,  was 
The  statutes  Comprised  in  a  series  of  ordinances  known  as  the 
of  Labourers  g^atutes  of  Labourers.^  These,  in  effect,  set  up 
what  may  be  called  a  system  of  State  Regulation,  to  replace 
the  old  customary  system  of  feudal  lordship.  The  chief  features 
of  the  new  system  were  —  (1)  the  fixing  of  the  wages  of  each 
class  of  servant  by  statute,^  (2)  the  compulsion  of  every  able- 
bodied  man  and  woman  under  the  age  of  sixty,  not  being  a 
merchant  or  skilled  artificer,^  nor  living  on  his  own  land,  to 
serve  any  one  who  might  require  his  or  her  services  at  the  ac- 
customed or  statutory  rate  of  wages,^  (3)  the  placing  of  the 
enforcement  of  these  provisions,  with  all  their  attendant  regula- 
tions, in  the  hands  of  the  Justices  of  the  Peace,^  thus  making 

123  Edw.  Ill  (1349)  cc.  1-8;  25  Edw.  Ill  (1351)  st.  II;  34  Edw.  Ill  (1360)  cc. 
9-11. 

2  25  Edw.  Ill  (1351)  St.  II,  c.  1 ;  11  Hen.  VII  (1494)  c.  22,  ss.  1-4 ;  6  Hen.  VIII 
(1514)  c.  3,  ss.  1-3. 

'  The  language  of  the  statute  of  1351  shows  that  this  exception  must  have  been 
very  strictly  construed.  Probably  only  master-craftsmen  were  exempted.  At 
any  rate,  carpenters,  masons,  tilers,  and  plasterers  were  included  in  the  system  of 
Btatutory  wages.      (25  Edw.  Ill   (1351)  st.   II,  c.  3.) 

^23  Edw.   Ill   (1349)    c.   1.  ^25  Edw.  Ill  (1351)  st.  II,  c.  7. 


314     A   SHORT   HISTORY   OF   ENGLISH   LAW 

the  law  of  master  and  servant,  in  effect,  a  branch  of  the  criminal 
law  as  summarily  administered.  This  system  was  substantially 
modified  in  the  middle  of  the  sixteenth  eentur;s'-,  by  the  Eliza- 
bethan statute  which  replaced  the  statutory  regulation  of 
wages  by  a  periodical  assessment  by  the  Justices  in  Quarter 
Sessions,^  and  introduced  a  carefully  regulated  system  of  ap- 
prenticeship for  skilled  trades.^  But  the  essential  features 
of  the  sj'stem  were  not  altered ;  and  it  was  actually  a  criminal 
offence  under  the  statute  of  Elizabeth,^  as  it  had  been  under 
the  statute  of  Edward  III,^  for  a  master  to  give,  or  a  servant 
to  receive,  more  than  the  statutory  or  assessed  rate  of  wage. 

There  seems  little  reason  to  suppose  that,  after  the  first 
excitement  of  a  depleted  labour  market  had  passed  away,  the 
system  of  State  Regulation  was,  as  a  whole,  unpopular  with 
masters  or  servants.  It  comprised  provisions  regarding  prices  ^ 
which,  if  they  gave  more  protection  to  the  rich  than  the  poor, 
were  not  without  benefit  to  the  poor,  and  rules  as  to  meals  and 
hours  of  work,  which  were  certainly  a  substantial  protection 
to  the  labourer.^  In  the  days  when  the  Law  of  Contract  was 
in  its  infancy,  and  when  competition  was  considered  to  be 
unfair,  it  was  deemed  inevitable  that  some  authority  should 
control  the  relationship  of  employer  and  employed ;  and,  after 
the  breakdown  of  one  status-system,  it  was  natural  to  set  up 
another.  But  the  regulation  of  the  labour  system  by  the  State 
implied,  of  course,  that  any  attempt  to  infringe  that  system, 
was  an  offence  against  the  State ;  and  especially  any  concerted 
attempt  to  throw  the  system  out  of  gear.  Accordingly,  we 
are  not  surprised  to  find  that,  in  addition  to  the  penalties  pre- 
scribed by  the  earlier  statutes  for  individual  offences,  a  statute 
of  the  year  1548  makes  it  an  offence,  punishable  with  much 
heavier  penalties,  for  the  sellers  of  victuals  to  '  conspire  '  to 
raise  prices,  or  for  any  artificers,  workmen,  or  labourers  to 
*  conspire,  covenant,  or  promise  together,  or  make  any  oaths, 
that  they  shall  not  make  or  do  their  works  but  at  a  certain 
price  or  rate,  or  shall  not  enterprize  or  take  upon  them  to  finish 

1  5  Eliz.  (1562)  c.  4,  es.  14-17.  ^  /^^-^^^  gg.  25-37.  '  Ibid.,  ss.   18-19. 

"23  Edw.  Ill  (1349)  cc.  4,  5,  8. 

6  23  Edw.  Ill  (1349)  c.  6  (victuals);    25  Edw.  Ill  (1350)  c.  4  (shoes,  &c.). 

6  11  Hen.  VII  (1494)  c.  22,  s.  4 ;  6  Hen.  VIII  (1514)  c.  3,  s.  4;  5  Eliz.  (1562) 
c.  4,  8.  9.  (In  spite  of  the  fact  that  these  provisions  arc  generally  couched  in  re- 
etrictive  language.) 


CONTRACT  AND  TORT  IN  MODERN  LAW  315 

what  another  hath  begun,  or  shall  do  but  a  certain  work  in  a 
day,  or  shall  not  work  but  at  certain  hours  and  times.'  ^  This 
statute,  however,  aims^  at  breaking  down  the  medieval  system 
of  close  corporate  towns,  by  forbidding  any  molestation  of 
*  foreign,'  i.e.  outside,  labourers. 

But  the  system  of  State  Regulation  set  up  in  the  fourteenth 
century,  good  or  bad,  broke  down  hopelessly  before  the  in- 
dustrial revolution  of  the  later  eighteenth  century,  and  the  new 
factory  system  which  it  rendered  inevitable.  Most  of  the  old 
The  Factory    skilled    trades,    with    their   elaborate   apprenticeship 

ystem  organizations,   rapidly  became   relics  of  a  bye-gone 

day,  and  their  organizations  mere  social  clubs  or  benefit  societies. 
The  vast  crowds  of  artizans  drawn  into  the  manufacturing 
towns  were,  on  the  other  hand,  wholly  unorganized,  and  fluc- 
tuated between  reckless  prosperity  and  sudden  destitution. 
Prices,  and,  consequently,  wages,  were  continually  disturbed 
by  the  events  of  the  Napoleonic  wars,  and  by  bad  harvests. 
When  times  were  good,  the  workmen  could  make  their  own 
terms;  though  most  of  them  were  far  too  unused  to  town  life 
to  make  them  to  advantage.  When  times  were  bad,  or  the 
labour  market  overstocked,  employers  had  it  their  own  way, 
and  were  not  always  very  scrupulous  in  turning  their  advantages 
to  the  best  account. 

It  is  by  no  means  certain,  that  the  workmen  were  not  the 
last  of  the  parties  concerned  to  abandon  the  old  system.^  But 
Trade  it  ultimately  became  clear  that  a  continuance  of  it 

°^°°^  was  impossible.     Naturally,  the  workmen,  in  course 

of  time,  were  led  to  form  organizations  of  their  own ;  and  thus 
Trade  Unions,  if  they  had  ever  really  died  out  after  the  passing 
of  the  statute  of  1548,  revived  again  with  great  vigour.  Equally 
naturally,  the  employers,  who  regarded  such  organizations  as 
dangerous  to  their  interests,  appealed  to  the  State  for  protec- 
tion ;  and  the  State,  scared  by  the  excesses  of  the  French  Revo- 
lution, replied  with  a  vigorous  series  of  Combination  Laws,^ 
intended  to  stamp  out  the  new  organizations.     It  is  not  neces- 

1  2  &  3  Edw.  VI  (1548)  c.  15,  s.  1.  "^  Ibid.,  s.  4. 

^  There  is  a  petition  of  labourers  as  late  as  1796,  asking  for  legislative  regulation 
of  wages  and  prices.      (Cunningham,  op.  cit.  II,  498.) 

*  The  most  important  were  39  Geo.  Ill  (1799)  c.  81,  repealed  and  replaced  in  the 
following  year  by  the  39  and  40  Geo.  Ill  (1800)  c.  106.  But  there  had  been  many 
earlier. 


316     A   SHORT   HISTORY   OF   ENGLISH   LAW 

sary  to  go  into  particulars  of  these  statutes,  which  were  of 
great  severity.  It  is  sufficient  to  say  that,  instead  of  allay- 
ing, they  merely  inflamed  the  passions  of  masters  and  servants, 
who  resorted  to  extreme  and  even  violent  measures  against  one 
another,  and  against  such  of  their  competitors  as  disagreed  with 
their  methods.  In  particular,  the  method  of  '  boycott  '  was 
used,  with  cruel  effect,  both  by  masters  and  men ;  ^  and  the 
*  black  list  '  was  a  familiar  document  both  in  employers'  count- 
ing houses  and  workmen's  clubs. 

In  the  year  1824,  chiefly  owing  to  the  labours  of  Joseph  Ilume 
and  Francis  Place,  aided  by  the  favourable  attitude  of  Huskis- 
son  and  Sir  Robert  Peel,  members  of  Lord  Liverpool's  Govern- 
ment, but  opposed  to  the  repressive  policy  of  Eldon 
the  Combi-  and  Sidmouth,  a  great  victory  in  the  cause  of  labour 
nation  aws  ^^^^^  achieved  by  the  passing  of  the  Act  for  repealing 
the  Combination  Laws.  The  statute  formally  wiped  out  of 
existence  the  repressive  code  which  had  grown  up  since  1548,'^ 
and  expressly  enacted,^  that  no  workman  should  be  '  subject 
or  liable  to  any  indictment  or  prosecution  for  conspiracy,  or  to 
any  other  criminal  information  or  punishment  whatever,  wider 
the  common  or  statute  laiv,'  for  '  entering  into  any  combination 
to  obtain  an  advance,  or  to  fix  the  rate  of  wages,  or  to  lessen 
or  alter  the  hours  or  duration  of  the  time  of  working,  or  to 
decrease  the  quantity  of  work,  or  to  induce  another  to  depart 
from  his  service  before  the  end  of  the  time  or  term  for  which 
he  is  hired,  or  to  quit  or  return  to  his  work  before  the  same  shall 
be  finished,  or,  not  being  hired,  to  refuse  to  enter  into  work  or 
employment,  or  to  regulate  the  mode  of  carrying  on  any  manu- 
facture, trade,  or  business,  or  the  management  thereof.' 

It  has  been  necessary  to  specify  the  terms  of  this  enactment 
at  length,  partly  because  they  show,  beyond  question,  that  the 
familiar  objects  and  methods  of  modern  Trade  Unionism, 
on  its  militant  side,  were  equally  familiar  when  the  Act  of  1824 
was  passed,  and  partly  because  of  an  event  which  immediately 
happened,  and  which  is  apt  to  puzzle  the  student. 

It  appears  that  even  such  champions  of  the  workmen's  cause 
as  Place  thought  that  Trade   Unions  were  simply  the  reflex 

'  Francis  Place,  though  a  thoroughly  capable  and  responsible  workman,  was  boy- 
cotted by  the  master  breeches-makers  of  London  for  taking  part  in  a  strike,  and 
nearly  starved  in  consequence.  He  was  saved  by  the  intercession  of  his  wife  (.Life 
of  Francis  Place  (Wallas),  p.  9).         ^  5  Geo.  IV  (1824)  c.  95,  s.  1.         =  Ibid.,  a.  2. 


CONTRACT  AND  TORT  IN  MODERN  LAW   317 

action  of  the  Combination  Laws,  and  that,  with  the  repeal  of 
those  laws,  they  too  would  disappear.  The  event  completely 
falsified  their  expectations.  Times  were  good  in  1824 ;  and 
the  Trade  Unions,  released  from  their  legal  shackles,  made  use 
of  the  fact  to  claim  higher  wages.  Strikes  followed  ;  the  manu- 
facturers, and  the  wealthy  classes  generally,  became  alarmed ; 
the  Government,  divided  in  opinion,  inclined  in  favour  of  strong 
.  ^   ,  _        measures.     In   the   session   of   1825,    a  new   Bill,   to 

Act  01  1025       ,  ,        .  1     «  1 

be  substituted  for  the  Act  of  1824,  was  introduced, 
with  a  view  of  reviving  the  old  restrictions.  But  it  was  fought 
gallantly  by  the  friends  of  labour ;  clause  after  clause  dis- 
appeared ;  the  new  Bill  began  to  look  more  and  more  like  the 
measure  it  was  intended  to  replace.  Finally,  it  appeared  on 
the  statvite-book  in  such  a  form  that  no  eye  but  that  of  an 
expert  could  tell  wherein  it  differed  from  its  predecessor.  But 
that  difference  proved,  none  the  less,  vital.  For  whereas  the 
Act  of  1824  not  only  repealed  the  Combination  statutes,  but 
went  on  expressly  to  exempt  from  punishment,  either  under  the 
common  or  statute  law,  all  combinations  for  the  purposes  named, 
the  Act  of  1825,^  while  continuing  the  repeal  of  the  statute  law,- 
followed  with  the  creation  of  a  fresh  series  of  offences  for  the 
exercise  of  force  in  achieving  the  objects  of  combination,^  and 
only  then  provided  that,  for  acts  of  much  less  gravity,  there 
should  be  no  prosecution  or  penalty,  '  any  law  or  statute  to 
the  contrary  notwithstanding.'  ^  In  spite  of  this  ominous 
modification,  however,  there  can  be  little  doubt  that  the  legis- 
lation of  1824-5  radically  altered  the  position  of  the  labourer, 
by  lifting  him  from  a  status  to  a  contract  system.  But  it  should 
be  carefully  noted,  that  neither  the  Act  of  1824,  nor  that  of 
1825,  repealed  that  part  of  the  old  system  which  referred  the 
decision  of  all  disputes  between  master  and  servant,  relative 
to  the  contract  of  service,  to  the  Justices  of  the  Peace  —  in 
other  words,  brought  them  under  the  criminal  law. 

The  next  event  of  first-rate  importance  in  the  history  of  our 
topic,  is  the  appearance  and  rapid  development  of  the  doctrine 
'  Common  ®^  '  common  employment,'  viz.  that,  in  the  absence 
Employ-  of  statutory  provision  or  personal  negligence,  an 
employer  is  not  responsible  to  his  workman  for  injuries 
caused  to  him  (the  workman)  by  the  act  or  neglect  of  a  fellow- 

'  6  Geo.  IV,  c.  129.  *  S.  2.  ^  S.  3.  «  S.  4. 


318    A   SHORT   HISTORY   OF   ENGLISH   LAW 

employee  in  the  course  of  the  employer's  business.  This  doc- 
trine is  universally  admitted  to  date  from  the  decision  in  Priestly 
v.  Fowler,^  in  the  year  1837.  In  that  case,  a  butcher's  man 
sought  to  recover  against  his  employer  for  injuries  caused  by 
the  over-loading  by  a  fellow-workman  of  a  van  upon  which  the 
plaintiff  was  travelling  in  the  course  of  his  duty.  Very  wisely, 
the  plaintiff's  advisers  avoided  resting  his  case  on  any  implied 
term  in  the  contract  of  service ;  fearing  that  they  might  be 
referred  by  the  Court  to  the  magistrates.  They  laid  it  as  a 
simple  claim  in  Tort,  based  on  the  maxim :  respondeat  superior. 
There  can  be  no  doubt  that,  had  the  plaintiff  been  a  mere  stranger 
who  had  been  run  over  by  the  negligent  driving  of  the  defen- 
dant's servant,  the  defendant  would  have  been  liable.  But  the 
Court  of  Exchequer  held  that  he  was  not  liable  to  the  plaintiff, 
his  workman.  It  is  a  little  difficult  to  follow  Lord  Abinger's 
reasoning ;  for  his  lordship  rests  the  decision  of  the  Court  ^ 
on  the  ground  of  the  inconvenience  which  would  follow  if  a 
plaintiff  in  a  similar  case  were  to  be  able  to  sue  on  the  negli- 
gence of  the  coach-maker,  the  harness-maker,  the  servants 
at  an  inn  at  which  the  plaintiff  might  be  called  upon  to  stay 
in  the  course  of  his  work,  the  upholsterers  who  made  the  bed, 
etc.  The  short  answer  to  these  objections  is,  that  none  of 
such  persons  are  servants  of  the  employer.  But  the  some- 
what later  cases  which  adopted  the  decision  in  Priestly  v.  Fowler, 
confined  it  strictly  to  common  employment,^  which,  however, 
included  persons  in  such  very  different  positions  as  a  common 
labourer  and  an  overseer,  or  even  a  mining  engineer  or  manager.* 
The  ground  usually  adopted  was  that  chosen  by  Alderson, 
B.,  in  Hutchinson  v.  York,  &c.  Railicay,°  viz.  that  the  plaintiff 
must  be  held  to  have  consented  to  run  the  risk  of  negligence  by  a 
fellow-servant.  There  were  certain  conditions  of  exemption,  e.g. 
that  the  employer  should  have  done  his  best  to  employ  proper 
servants,  and  not  have  exposed  the  plaintift*  to  unreasonable 
risks.  Nevertheless,  the  working  of  the  doctrine  of  'common 
employment'  deprived  the  artizan  classes  of  most  of  the  benefits 
of  the  Fatal  Accidents  Act,  1846,^  and  continued  to  work  great 

13  M.  &  w.  1.  "^-i  M.  &  w.,  at  p.  6. 

^Hutchinson  v.  York,  etc.,  Railway   (1850)  5  Exch.  351  ;    Bartonshill  Coal  Co.  v. 
Reid  (1858)  3  Macq.  326  (extending  the  doctrine  to  Scotland). 

♦Sec  last  case,  and  Wilson  v.  Merry  (1868)  L.R.  1  H.L.  (Sc.)  326. 
'  Ubi  sup.,  «  Ante,  pp.  307,  308. 


CONTRACT  AND  TORT  IN  MODERN  LAW  319 

hardship,  until  its  partial  modification  by  the  passing,  by  Mr. 
Gladstone's  Government,  of  the  Employers  Liability  Act,  1880.^ 
It  still  applies  to  the  injury  caused  by  the  negligence  of  an 
ordinary  adult  fellow-servant  of  the  plaintiff,  not  due  to  the 
directions  of  the  employer,  or  to  the  defective  working  of  a 
railway.  But  its  importance  has  been  greatly  lessened  by  the 
passing  of  the  Workmen's  Compensation  Acts,  to  be  hereafter 
referred  to.^ 

Almost  concurrently  with  the  definite  adoption  of  the  doc- 
trine of  'common  employment,'  another  danger  threatened 
the  aspirations  of  the  working-classes,  especially 
Law '  Con-  those  expressed  by  the  labour  organizations.  These 
spiracy  bodies   had   prospered   greatly   since  the   acquisition 

of  the  modified  protection  given  to  them  by  the  repeal  of  the 
Combination  Laws,  and  were  now,  in  many  cases,  in  a  highly 
flourishing  condition.  In  addition  to  their  earlier  objects, 
they  had  adopted  a  system,  or,  rather,  various  systems,  of 
provision  for  old  age,  sickness,  loss  of  employment,  and  other 
contingencies.  Sometimes  these  benefits  were  secured  by 
the  agency  of  a  society  exclusively  concerned  with  them,  and 
known,  generally,  as  a  'Friendly  Society.'  In  other  cases, 
the  older  type  of  organization,  known  as  a  Trade  Union,  origi- 
nally formed  principally  to  protect  and  assist  its  members  in 
trade  disputes,  had  extended  its  objects,  and  included  the 
functions  of  a  Friendly  Society.  Moreover,  about  the  year 
1850,  a  very  formidable  movement  was  started  for  the  federa- 
tion of  the  numerous  local  Trade  Unions  in  a  particular  trade, 
which  had  hitherto  existed  independently  throughout  the 
kingdom.  One  of  the  earliest  and  most  important  results  was 
the  formation  of  the  great  Amalgamated  Society  of  Engineers. 
Thus  greatly  strengthened,  both  in  funds  and  membership,  the 
new  bodies  felt  their  power,  and  used  it.  The  capitalist  classes, 
equally  naturally,  felt  alarmed ;    and  prosecutions  followed. 

But  it  was  a  little  difficult  for  the  prosecutors  to  know  how 
to  proceed.  It  was  generally  supposed,  that  the  statute  of 
1825  had  repealed  all  the  old  laws  against  labour  organiza- 
tions, and  that,  so  long  as  Trade  Unions  kept  within  the  terms 
of  that  Act,  they  were  safe.  Baron  Rolfe,  in  a  case  tried  in 
1847,^  had  actually  ruled  to  that  effect.     Accordingly,  one  of 

M3  &  44  Vict.  c.  42.         ^  p^^i^  pp.  329-331.         '  Reg.  v.  Selsby  (1847)  5  Cox,  495. 


320     A  SHORT  HISTORY  OF  ENGLISH  LAW 

the  prosecutions  of  1851^  was  especially  based  on  the  third 
section  of  the  Act  of  1825,  which  forbade,  on  pain  of  three 
months'  hard  labour,  any  attempt  to  force,  by  violence,  threats, 
or  intimidation,  any  workman  to  leave  his  employment,  return 
his  work  unfinished,  or  refuse  to  enter  any  employment,  or  to 
join  or  remain  a  member  of  any  society,  or  any  employer  to 
alter  his  methods  of  carrying  on  his  business.  But  it  is  to  be 
observed,  that  the  defendants  were  charged,  not  with  an  actual 
breach  of  the  section,  but  merely  with  a  conspiracy  to  cause  a 
breach  of  it ;  the  Court  holding,  in  spite  of  an  express  decision 
to  the  contrary  by  Lord  Ellenborough,  forty  years  before,^ 
that  an  agreement  or  combination  to  procure  the  commission 
of  a  statutory  offence,  is  itself  a  criminal  conspiracy,  punishable 
by  fine  and  imprisonment,  at  the  common  law.  The  prosecu- 
tions of  1851  went  further  still,  and  procured  the  ruling  of 
Mr.  Justice  Erle,^  to  the  effect  that,  quite  independently  of 
statute,  or  the  use  of  illegal  means,^  a  combination  of  workmen 
for  the  purpose  of  'obstructing'  an  employer  in  his  business, 
and  so  of  forcing  him  to  agree  to  a  certain  schedule  of  prices, 
by  'persuading'  'free  men '^  to  leave  the  employer's  service, 
w^ould  be  'a  violation  in  point  of  law.'  Thus  was  born  the 
doctrine  of  '  common  law  conspiracy '  in  its  criminal  aspect.  And 
now  the  vital  importance  of  the  change  of  language  between 
1824  and  1825''  became  apparent;  for  it  would  have  been  prac- 
tically impossible  for  Mr.  Justice  Erie  to  have  delivered  his 
celebrated  ruling  in  face  of  the  language  of  the  statute  of  1824. 
That  ruling,  in  effect,  declared,  that  any  combination  to  obtain 
even  a  perfectly  lawful  object,  e.g.  a  rise  of  wages  or  prices, 
by  means  of  a  strike,  was  a  criminal  offence  at  the  common  law. 
For  such  a  doctrine  it  is  difficult  to  find  historical  warrant. 
Every  offence  against  the  State  Regulation  systems  of  the 
fourteenth  and  sixteenth  centuries  had  been  carefully  created 
and  defined  by  statute ;    and,  with  the  repeal  of  those  statutes, 

^  R.  V.  Rowlands.     (This  part  of  the  case  will  be  found  at  pp.  466-495  of  5  Cox.) 

^  R.  V.   Turner  (1811)    15  East,  228. 

^  R.  V.  Rowlands  (1851)  5  Cox,  at  p.  462.  See  also  a  similar  ruling  of  the  same 
learned  judge  in  R.  v.  Duffield  (1851)  ibid.,  at  p.  431,  where  the  object  was  to  raise 
wages. 

'' '  There  are  no  threats  or  intimidations  supposed  to  have  been  used  towards  the 
■worlcmcn'    (Erie,  J.,  at  p.  4.31). 

*  By  'free  men'  the  learned  judge  apparently  meant  men  not  under  a  legally 
binding  engagement  (see  p.  431). 

^  Ante,  p.  317. 


CONTRACT  AND  TORT  IN  MODERN  LAW   321 

had  fallen  to  the  ground.  The  common  law  offence  known  as 
Conspiracy  (which  was  itself  founded  on  statute  ^)  was  directed 
to  a  totally  different  class  of  offences,  viz.  the  procuring  of 
false  indictments.  In  the  Elizabethan  books  on  criminal  law, 
the  cases  of  Conspiracy  are  entirely  confined  to  this  latter 
type ;  and  there  is  no  suggestion  that  it  includes  strikes  or 
boycotts.^  Indeed,  it  is  a  little  difficult  to  see  how  such  a 
crime  could  have  existed,  unless  we  suppose  it  to  have  been 
reserved  exclusively  for  trial  by  the  King's  judges ;  for  the 
jurisdiction  of  the  Justices  of  the  Peace  was  entirely  statutory. 
It  is  true  that  the  English  Courts  refuse,  and  have  long  refused, 
to  enforce  contracts  made  '  in  restraint  of  trade ' ;  but,  as  Lord 
Halsbury  carefully  pointed  out  in  a  case  to  be  afterwards  more 
particularly  alluded  to,^  such  contracts  were  never  'unlawful,' 
in  the  sense  that  they  were  'contrary  to  law,'  i.e.  punishable 
either  criminally  or  civilly.  It  is  true  also  that  certain  ancient 
offences  against  the  medieval  system  of  markets,  e.g.  'forestal- 
ling,' 'regrating,'  and  'ingrossing'  still  lingered  on  the  statute 
book.  But  from  these  it  was  a  long  step  to  the  formidable 
doctrine  of  criminal  conspiracy. 

As  might  have  been  expected,  this  new  doctrine  caused  great 
ill-feeling  among  the  working  classes ;  and  the  next  few  years 
Legislation  after  1851  were  filled  with  strikes.  The  Trade 
of  1867  Unions  throve  on  the  resentment  thus  created ; 
and  it  is  to  be  feared  that  the  officials  of  some  of  them,  unduly 
exalted,  were  guilty  of  grave  excesses  and  crimes.  But  the 
Royal  Commission  which  sat  in  1867,  with  statutory  powers,* 
was  totally  unable  to  discover  the  existence  of  any  general 
criminal  features  in  Trades  Unionism ;  and  the  action  of  Lord 
Derby's  Government,  in  bringing  in  a  Bill  to  revive  the  neglected 
jurisdiction  of  the  magistrates  in  dealing  with  questions  arising 
out  of  the  contract  of  service,  was  deeply  resented.  Never- 
theless, it  passed  into  law  as  the  Master  and  Servant  Act,  1867,^ 
and  remained  in  force  till  1875.^  The  net  result  of  it  was, 
that  breaches  of  contract,  which,  by  anyone  but  a  workman, 
would  have  been  matter  for  a  civil  action,  were  punishable  by 

1  28  Edw.  I  (1300)  c.  10 ;    33  Edw.  I  (1304)  st.  II. 

^  See  Fitzherbert,  L'Office,  &c. :    Lambarde,  Eirenarcha,  sub  tit.  '  Conspiracy.' 

^  Mogul  Steamship  Co.  v.  McGregor  [1892]  A.C.,  at  p.  39. 

4  30  &  31  Vict.  cc.  8,  74.  ^  Ibid.,  c.  141. 

*  Conspiracy  and  Protection  of  Property  Act,  1875,  s.  17. 


3^22    A   SHORT  HISTORY  OF  ENGLISH  LAW 

fine  and  imprisonment.  It  is  true  that  the  civil  rights  of  the 
parties  were  not  taken  away,^  and  that  the  section  empowering 
the  magistrates  to  inflict  fine  and  imprisonment  might  conceiv- 
ably have  been  applied  to  an  employer ;  ^  but  it  was  so  worded 
as  to  render  it  doubtful  if  that  was  the  intention  of  its  framers, 
and,  in  any  case,  the  alternative  of  a  fine  (limited  to  £20)  always 
aftorded  a  door  of  escape  to  the  capitalist.  ^Meanwhile,  the 
new  doctrine  of  'common  law  conspiracy'  had  been  quietly 
incorporated  into  statute  law  by  that  section  of  the  great  Of- 
fences against  the  Person  Act  of  1861,^  which  speaks  of  'any 
unlawful  combination  or  conspiracy  to  raise  the  rate  of  wages.' 
But  the  tide  soon  turned  in  favour  of  the  workmen.  In 
the  year  1871,  Mr.  Gladstone's  Government  introduced  and 
The  Trade  passed  the  first  Trade  Union  Act,  by  far  the  most 
Union  cts  important  victory  up  to  that  time  achieved  by 
the  champions  of  labour  organizations.  By  that  statute,'* 
it  was  expressly  provided,  that  the  purposes  of  a  Trade  Union 
should  not,  merely  because  they  were  '  in  restraint  of  trade,'  be 
deemed  criminal,  nor  should  they  render  void  any  agreement 
or  trust.  But  the  Act  went  further ;  and  provided  that  any 
Trade  Union  which  chose  to  register  itself  might  vest  its  prop- 
erty in  trustees,^  who  should  be  capable  of  suing  and  being 
sued  on  all  matters  touching  the  '  property,  right,  or  claim 
to  property,'  of  the  Union.  Moreover,  the  treasurer  and  other 
officials  of  a  registered  Trade  Union  were  compelled  to  account ;  ® 
and  persons  embezzling  or  improperly  obtaining  possession 
of  the  funds  or  other  movable  property  of  a  registered  Union, 
were  made  liable  to  criminal  prosecution.''  This  was  an  enor- 
mous benefit  to  the  Unions,  which,  hitherto,^  as  bodies  not 
recognized,  or  even  suspect,  by  law,  had  no  remedy  for  crimes 
committed  at  their  expense.  On  the  other  hand,  the  Act  of 
1871  is  careful  to  deny  a  legal  personality  to  Trade  Unions, 
by  enacting  that  no  Union  may  register  as  a  company  under  the 
Companies  Acts,^  and  that  no  legal  proceeding  may  be  insti- 
tuted to  enforce  any  agreement  entered  into  for  the  direct  pur- 

1  Master  and  Servant  Act,  1867,  s.  18.  -  Ibid.,  9. 

*  24  &  25  Vict.  c.  100,  s.  41. 

••34  &  .35  Vict.  c.  31,  ss.  2,  3.  ^g   g  eg    n  -  g_  12. 

*  A  ver>-  partial  and  inadequate  protection  had  been  given  by  the  Trades  Unions 
Funds  Protection  Act,  of  the  year  1869  (32  &  33  Vict.  c.  61). 

9  S.  5  (.3). 


CONTRACT  AND  TORT  IX  MODERN  LAW   323 

pose  of  carrying  out  any  of  the  objects  of  the  Union,  or  any 
bond  for  securing  performance   of  such  agreement.^ 

It  may  seem  a  little  surprising,  that  the  passing  of  such  a 
statute  as  that  of  1S71  should  have  been  almost  immediately 
followed  by  a  fresh  appearance  of  the  doctrine  of  '  common 
law  conspiracy  ' ;  but  such  in  fact  was  the  case.  For,  in  the 
celebrated  trial  of  R.  v.  Buiui,-  !Mr.  Justice  Brett  (afterwards 
Lord  Esher)  directed  the  jury  that  (1)  an  agreement  of  workmen 
to  '  control  the  will '  of  masters,  and  (2)  an  agreement  to  in- 
duce men  to  break  their  contracts  with  a  view  to  secure  the 
re-instatement  of  a  fellow-workman,  were  common  law  criminal 
conspiracies,  even  though  no  violence  was  used,  and,  further, 
that  the  former,  at  least,  was  '  molestation  and  obstruction ' 
within  the  meaning  of  the  Criminal  Law  Amendment  Act,  1871,^ 
passed  concurrently  with  the  Trade  Union  Act.  This  con- 
struction seemed  to  the  workmen  to  be  simple  defiance  of  the 
plain  intention  of  the  legislature ;  and  they  did  not  rest  till 
they  had  persuaded  Mr.  Disraeli's  Government  to  pass  the 
Conspiracy  and  Protection  of  Property  Act,  1875.  That 
ConsDiracy  important  statute,  repealing  the  Master  and  Ser- 
and  Pro-  vant  Act,  1867,  the  Criminal  Law  Amendment 
Property  Act,  1871,  and  the  whole  of  the  old  legislation  '  mak- 
ing  breaches  of  contract  criminal,'  ^  expressly  enacted 
that  '  an  agreement  or  combination  by  two  or  more  persons  to  do 
or  procure  to  be  done  any  act  in  contemplation  or  furtherance 
of  a  trade  dispute  '  shovdd  '  not  be  indictable  as  a  conspiracy 
if  such  act  committed  by  one  person  would  not  be  punishable 
as  a  crime  ' ;  unless  such  combination  were  expressly  made  a 
conspiracy  by  statute.^  ^Moreover,  to  restrain  still  further 
the  doctrine  of  '  conspiracy  to  commit  a  crime,'  the  Act  pro- 
vided,^ that  nothing  in  this  connection  should  be  deemed  a 
'crime  '  which  was  not  punishable,  at  least  as  an  alternative, 
with  imprisonment,  and  that  when  the  '  crime  '  was  only  pun- 
ishable on  summary  conviction,  the  maximum  sentence  on 
the  conspirator  should  be  three  months'  imprisonment.  Finally, 
and  this  was,  perhaps,  the  most  highly-prized  victory  of  all, 
the  statute,  though  making  such  acts  as  the  use  of   force  or 

1  S.  4.  2  (ig72)  12  Cox,  316.  ^  34  &  35  Vict.  c.  32,  s.  1  (3). 

*  The  few  breaches,  invohnng  danger  to  life  or  property,  which  are  still  criminal, 
■were  provided  for  bv  new  legislation  in  ss.  4-7  of  the  Act. 
s  S.  3.  « Ibid. 


324    A  SHORT  HISTORY  OF  ENGLISH   LAW 

threats,  '  shadowing,'  '  rattening,'  '  watching  and  besetting.' 
and  bullying,  punishable  on  summary  conviction,  expressly 
provides  ^  that  *  attending  at  or  near  a  house  where  a  person 
resides,  or  works,  or  carries  on  business,  or  happens  to  be  .  .  . 
in  order  merely  to  obtain  or  communicate  imformation,  shall 
not  be  deemed  a  watching  or  besetting  within  the  meaning 
of  the  section.'  Thus  the  right  of  '  peaceful  picketing  '  was 
definitely  established  by  statute. 

After  1875  we  hear  nothing  more  of  the  *  criminal  conspiracy 
at  the  common  law ' ;  but  the  workmen  were  much  mistaken  if 
they  thought  that  the  right  of  combination  was  threatened 
with  no  further  dangers.  The  next  development  seems  to 
have  been  suggested  by  the  words  of  Mr.  Justice  Erie,  in  the 
case  of  Reg.  v.  Rowlands,^  previously  referred  to ;  and  it  is  de- 
cidedly interesting. 

It  appears  that,  even  by  the  common  law,  there  was  a  very 
ancient  action  for  depriving  a  master  of  his  servant.  This 
was  natural  in  days  when  a  servant  was  regarded  as  his  master's 
property.  Moreover,  the  Statutes  of  Labourers  would,  ob- 
viously, have  been  rendered  futile,  if  employers,  in  the  fierce 
competition  for  labourers  produced  by  the  ravages  of  the  Plague, 
had  been  allowed  to  draw  away  their  neighbour's  servants. 
This  fact  was  fully  recognized ;  and  Fitzherbert,  in  his  well- 
known  book,  gives  ^  the  form  of  writ  devised  as  a  remedy  for 
employers  whose  servants  were  '  seduced,'  or  enticed  away, 
by  rivals,  or  even  merely  '  retained  '  by  third  parties  after 
unlawfully  leaving  their  former  masters. 

This  writ  was  not  highly  popular  for  the  purposes  for  which 
it  was  immediately  invented ;  but  it  became  the  parent  of 
Deprivation  other  more  or  less  remotely  analogous  actions.  From 
of  Services  -^  ^^.^  derived  the  action  for  debauching  a  woman, 
now  technically  known  as  the  '  action  for  seduction,'  ■*  the  action 
for  '  stealing  a  wife,'  or  for  'loss  of  consortium,'  '"  and  the  action 

1  S.  7  ad  fin-  '  (1851)  5  Cox,  at  p.  462. 

^Natura  Brevium,  ff.  167  B-168  B. 

*  This  application  of  the  writ  is  as  old  as  1704  {Riissell  v.  Come,  2  Ld.  Raymond, 
1031) ;  and  to  the  form  of  action  the  remedy  for  seduction  owes  most  of  its  un- 
fortunate peculiarities. 

'•'  Winsmore  v.  Greenbank  (1745)  Willes,  547.  It  is  probable,  regard  being  had 
■to  the  decision  in  R.  v.  Jackson  [1891]  1  Q.B.  671,  that  this  action  now  only  lies 
where  the  wife  has  been  involuntarily  injured  by  the  defendant,  e.g.  by  negligent 
driving.      But,  in  such  cases,  it  is  common  enough. 


CONTRACT  AND  TORT  IN  MODERN  LAW   325 

for  harbouring  a  servant  who  has  improperly  left  his  employer's 
service.^  But,  so  far  as  the  writer  is  aware,  it  was  never  used 
by  an  employer  against  workmen  before  the  middle  of  the 
nineteenth  century. 

It  so  happened,  however,  that,  in  the  year  1853,  attention 
had  been  called  to  the  existence  of  the  old  remedy  by  the  well- 
known  case  of  Lumley  v.  Gye,^  in  which  an  opera  impresario 
had  successfully  maintained  an  action  against  a  rival  who 
had  knowingly  engaged  a  singer  while  she  was  under  exclusive 
engagement  to  sing  for  the  plaintiff.  The  decision  provoked 
much  difference  of  opinion;  and  it  obviously  extended  the 
action  for  deprivation  of  services  beyond  the  scope  originally 
contemplated.  Nevertheless,  it  was  followed  in  the  year  1881 
in  the  case  of  Bowen  v.  Hall;^  and  still  more  recent  decisions 
have  shown  a  tendency  to  extend  it  to  wilful  procurement  of 
breaches  of  all  kinds  of  contracts.^  This  is  really  a  wide  de- 
parture from  the  older  theory  of  contract,  which  strictl}^  con- 
fined actions  on  a  contract  to  the  parties  themselves.^  But 
that  objection  is  met  by  the  argument  that  the  new  action  is 
not  for  breach  of  the  contract,  but  for  procuring  a  breach  of 
contract  —  i.e.  an  independent  tort,  which  treats  the  contract, 
not  as  the  cause,  but  as  the  mere  subject-matter  of  the  offence. 

Of  the  boundless  horizon  opened  up  by  this  new  kind  of 
action,  it  is  not  possible  here  to  speak.  The  point  in  the  narra- 
tive is,  that  it  was  taken  up  by  the  employers  as  yet  another 
weapon   against  the  claims  of  labour  organizations. 

Accordingly,  in  the  case  of  Temperton  v.  Russell,^  the  plaintiff, 
a  builder  at  Hull,  sued  the  members  of  the  joint  committee 
'  CivU  Con-  of  three  Trade  Unions  for  damages  for  inducing, 
spiracy '  under  threat  of  a  strike,  various  tradesmen,  who 
had  contracted  to  supply  him  with  goods,  to  break  their  con- 
tracts, and,  further,  for  damages  for  inducing  such  persons 
not  to  enter  into  contracts  with  him  (the  plaintiff).  The  cause 
of  the  dispute  was  the  alleged  non-observance  by  the  plaintiff  of 
certain  trade  rules-  laid  down  by  the  Unions  for  their  members. 

With  regard  to  the  first  claim,  there  was,  after  the  recent 
decisions  in  Lumley  v.  Gye  and  Bowen  v.  Hall,^  very  little  hope 

1  Blake  v.  Lanyon  (1795)  6  T.R.  221.         2  2  E.  &  B.  224.         '  6  Q.  B.  D.  333. 

^National  Phonograph  Co.  v.  Ball  [1908]   1   Ch.  335. 

<■  Tweddle  v.  Atkinson  (1861)   1  B.  &  S.  393. 

';[1893]  1  Q.B.  715  (C.A.).  '  Ubi  sup. 


326    A  SHORT  HISTORY  OF  ENGLISH  LAW 

of  resistance.  But  in  the  way  of  the  second,  there  was  a  pecul- 
iarly awkward  obstacle.  For,  no  later  than  the  previous 
year,  the  House  of  Lords  had  solemnly  decided  in  Mogul  Steam- 
ship Co.  V.  McGregor,^  that  a  ring  of  shipowners,  who,  in  order 
to  secure  a  monopoly  of  a  certain  trade,  had  not  merely  com- 
bined to  underbid  all  rivals  in  the  matter  of  freights,  and  offered 
a  rebate  of  5  per  cent,  to  all  shippers  who  should  ship  only  with 
members  of  the  ring,  but  actually  threatened  with  dismissal 
agents  of  members  who  should  act  for  such  rivals,  had  committed 
no  breach  of  the  law.  What  they  had  done  was  in  the  pursuit 
of  legitimate  trade  competition. 

But,  in  the  case  of  Temperton  v.  Russell,  the  Court  of  Appeal, 
in  spite  of  the  decision  of  the  House  of  Lords  in  the  previous 
year,  boldly  adopted  the  doctrine,  hitherto  unknown  to  English 
tribunals,-  that  a  combination  of  persons,  if  not  a  single  person, 
who  knowingly  induced  others  not  to  enter  into  contracts  with 
A,  would  be  liable  to  an  action  by  A,  if  the  latter  actually  suffered 
loss  in  consequence  of  the  defendants'  conduct.  Instead  of 
explaining  away  the  Mogul  Case,  the  Court  of  Appeal  used 
expressions  of  the  learned  Lords  in  that  case  as  the  justification 
of  its  conclusion ;  despite  the  fact  that,  as  the  Mogul  Case  was 
decided  in  favour  of  the  defendants,  these  expressions  must 
have  been  mere  obiter  dicta.^ 

Nevertheless,  both  branches  of  the  decision  in  Temperton  v. 
Russell  were  fully  acted  upon  by  the  Courts.  Though  the 
case  of  Allen  v.  Flood  *  failed,  on  the  ground  that  there  was  no 
evidence  of  actual  breach  of  contract  by  the  employers,  the 
principle  that  the  inducing  either  of  masters  or  workmen  to 
break  existing  contracts  is  actionable,  either  by  the  workmen 
discharged  or  the  master  deprived  of  his  servant,  has  been  upheld 
in  Reed  v.  Operative  Stonemasons,^  Gihlan  v.  National  Labourers' 
Union, ^  Glamorgan  Coal  Co.  v.  S.  W.  Miners'  and  other  cases. 
And  the  doctrine,  that  a  combination  to  induce  third  persons 

« [1892]  A.C.  25. 

*  There  was  a  faint  authority  claimed  for  ihe  thoroughly  untrustworthy  case 
of  Gregory  v.  D.  of  Brunswick  (1843)  6  M.  &  G.  205,  953.  In  this  case,  though 
actual  violence  was  alleged  against  the  defendants,  they  obtained  a  verdict;  and  the 
question  of  law  was  never  really  discussed. 

'  It  is  a  little  difficult  to  trace  the  passages  to  which  Lord  Esher,  in  [1893] 
1  Q.B.,  at  p.  729  refers. 

*  [18981  A.C.  1. 

^[1902]  2  K.B.  732.     (Here  the  action  was  by  the  dismissed  workman.) 
M1003]  2  K.B.  600.  '[1905]  A.C.  239. 


CONTRACT  AND  TORT  IN  MODERN  LAW   327 

not  to  enter  into  the  employ  of,  or  supply  goods  to,  the  plaintiff, 
though  no  actual  breach  of  contract  occurs,  is,  if  it  occasions 
loss  to  the  plaintiff,  a  cause  of  action,  is  fully  upheld  by  the 
leading  decision  of  Quiiin  v.  Leathern^  (the  '  Belfast  Butchers' 
Case  '),  in  spite  of  the  fact  that  two  of  the  learned  Lords  who 
decided  that  case  had  taken  part  in  the  unanimous  judgment 
in  the  Mogul  Case?  Thus  came  into  existence  the  new  doctrine 
of  civil  conspiracy,  to  replace  the  doctrine  of  '  common  law ' 
criminal  conspiracy,  which  had  been  extinguished  by  the  Act 
of  1875.^  It  is  a  far-reaching  doctrine,  the  end  of  which  it  is 
difficult  to  foresee;^  despite  the  fact  that  it  has,  by  recent 
legislation,  been  deprived  of  its  application  to  industrial  dis- 
putes.^ It  must  be  carefully  noted  that,  as  explained  by  Lord 
Esher  in  Tem'perton  v.  Russell,^  '  civil  conspiracy  '  differs  from 
criminal,  in  that,  in  the  case  of  the  former,  damage  to  the  plain- 
tiff is  essential  to  the  action ;  while,  in  the  case  of  criminal 
conspiracy,  it  is  the  conspiracy  which  is  the  gist  of  the  prose- 
cution. The  suggestion  that  a  single  person  might  be  held 
liable  for  similar  conduct  has  not  been  adopted.^ 

A  far  more  serious  matter,  however,  even  than  the  develop- 
ment of  the  doctrine  of  civil  conspiracy,  was  the  decision  given 
_.    .  by  Mr.  Justice  Farwell  in  the  well-known   Taff  Vale 

Unions  and  Case,^  whicli  after  being  reversed  by  the  Court  of 
orpora  ons  ^pp^g^j  9  ^^^  confirmed  by  the  House  of  Lords. ^°  By 
this  celebrated  decision,  which  really  worked  a  revolution  in  Eng- 
lish law,  it  was  held  that  a  Trade  LTnion,  registered  under  the 
Act  of  1871,^^  might  be  made  a  defendant  in  an  action  founded 

1  [1901]  A.C.  495.  2  Ante,V>.  326. 

^  Ante,  pp.  323,  324.  (The  notion  that  an  action  for  civil  conspiracy,  of  the  kind 
alleged,  was  known  to  the  common  law,  is  still  more  baseless  than  the  view  that  the 
common  law  knew  a  doctrine  of  criminal  conspiracy.  The  action  of  Conspiracy 
on  the  old  statutes  had  given  birth  in  the  sixteenth  century  (Fitzherbert,  Natura 
Brevium,  fo.  116  A)  to  the  action  of  Malicious  Prosecution ;  and  there  it  had  ended. 
Of  course,  Malicious  Prosecution  cannot  be  brought  for  inducing  people  not  to 
enter  into  contracts.) 

"  There  has  been  some  suggestion  that  the  doctrine  is  confined  to  cases  of  injury 
to  the  plaintiff's  trade,  business,  or  profession.  But  see  Sweeney  v.  Coote  [1907] 
A.C.  221. 

6  Trade  Disputes  Act,  1906,  s.   1.  « [1893]  1  Q.B.,  at  p.  729. 

'  It  was  favoured  by  Lord  Lindley  in  Quinn  v.  Leathern  [1901]  A.C,  at  p.  537, 
and  by  Romer,  L.  J.,  in  Giblan  v.  National  Labourers  [1903]  2  K.B.,  at  pp.  619-20. 
Obviously,  if  it  were  adopted,  it  would  render  s.  1  of  the  Trade  Disputes  Act  inopera- 
tive in  this  important  class  of  cases. 

"  (1900)  70  L.J.K.B.  905.  » [1901]  1  K.B.  170. 

1"  [1901]  A.C.  426.  "  Ibid. 


328    A   SHORT  HISTORY   OF  ENGLISH  LAW 

on  torts  alleged  to  have  been  committed  by  its  officials  on  its 
behalf,  and  the  Trade  Union  funds  be  made  liable  to  pay  the 
damages  awarded.  There  was  no  historical  authority  for  such 
a  proposition.  As  Mr.  Justice  Farwell  admitted/  '  a  corpora- 
tion and  an  individual  or  individuals  '  were  '  the  only  entity 
known  to  the  Common  Law  who  can  sue  or  be  sued  ' ;  yet  he 
held,  and  was  followed  by  the  House  of  Lords,  that,  by  impli- 
cation (for  it  was  common  ground  that  the  Acts  contained  no 
expressions  to  that  effect)  the  Trade  Union  Acts  of  1871  and 
1876,^  by  conferring  upon  Trade  Unions  many  valuable  rights 
in  connection  with  the  protection  of  their  funds,  had  rendered 
them  liable  to  be  sued  for  torts,  quite  unconnected  with  prop- 
erty, but  alleged  to  have  been  committed  by  their  officials 
acting  on  their  behalf.  If  the  Court  had  held  that  the  trustees 
of  the  Union,  in  a  matter  '  concerning  the  real  or  personal  prop- 
erty of  such  Trade  Union,'  could  be  sued,  it  would,  of  course, 
have  been  merely  following  the  wcr"ds  of  the  Act  of  1871 ;  ^  but 
that  course  would  not  have  suited  the  plaintiffs,  who,  probably, 
could  not  prove  any  complicity  by  the  trustees.  All  the  learn- 
ing and  ingenuity  of  the  Court  and  the  House  of  Lords  could 
not  discover  more  than  a  dozen  quotable  precedents ;  and  one 
of  these  was  so  remote  "^rom  the  point  as  that  of  Sevenoaks  Ry. 
Co.  V.  L.  C.  &  D.  Co.,^  which  merely  decided  that  a  statute 
might,  by  implication,  authorize  a  lease  in  perpetuity.  Apart 
from  such  attenuated  analogies,  there  was  no  attempt  to  meet 
the  common  sense  argument,  that  the  framers  of  the  Trade 
Union  Acts,  who  expressly  gave  to  the  trustees  of  the  registered 
Unions  limited  powers  of  suing  and  being  sued,  could  not  possibly 
have  omitted,  by  mere  forgetfulness,  to  confer  similar  powers  on 
the  Unions  themselves.  They  did  not  confer  such  powers; 
because  they  did  not  think  it  wise  to  do  so.  The  decision 
of  the  Lords  in  the  Taff  Vale  Case  was  pure  legislation ;  and 
it  threatened  to  ruin  Trade  Unionism,  by  making  huge  drafts 
upon  its  funds.  The  House  of  Lords  had  first  invented  a  new 
civil  offence  ('civil  conspiracy'),  and  had  then  created  a  new 
kind  of  defendant  against  whom  it  could  be  alleged. 

But   this   decision,    combined    with    certain    severe   decisions 

»  [1901]  A.C.,  at  p.  429. 

2  The  Act  of  187G  (39  &  40  Vict.  c.  22)  had  amended  the  Act  of  1871  {ante,  pp. 
322)  in  various  minor  points. 

»  S.  9.  *  (1879)  11  Ch.  D.,  at  p.  635. 


CONTRACT  AND  TORT  IN  MODERN  LAW  32^ 

given  about  the  same  time  in  connection  with  the  much-disputed 

Trade  point   of   '  peaceful   picketing,'  ^   seems  to  have  con- 

Disputes  ,  '-.  1        •  ,  .       , 

Act  vmced  the  Unions  that  it  was  hopeless,  in  the  exist- 

ing state  of  the  statute  law,  to  attain  what  they  conceived  to 
be  their  just  rights.  They  accordingly  bent  their  whole  energies 
towards  obtaining  an  alteration  of  the  statute  law ;  and,  after 
the  General  Election  of  January  1906,  as  one  of  the  first  meas- 
ures of  the  new  Parliament,  they  succeeded  in  procuring  the 
passing  of  a  short  but  drastic  Act,  the  Trade  Disputes  Act, 
1906.^  The  first  thing  to  note  about  this  important  statute  is, 
that  the  first  three  of  its  four  enactments  are  by  express  words,^ 
and  the  fourth  by  judicial  interpretation,*  confined  to  acts  done 
*  in  contemplation  or  furtherance  of  a  trade  dispute.'  Sub- 
ject to  this  qualification,  however,  the  Act  expressly  renders 
non-actionable  — 

1.  Any  act  done  by  a  combination  of  persons  which  would 

not  be  actionable  if  ione  without  such  combination  (s.  1). 

2.  Any  act  which  merel}"  induces  a  breach  of  a  contract 

of  employment,  or  interferes  with  trade,  business  or 
employment,  or  the  right  of  some  other  person  to 
dispose  of  his  capital  or  labour  as  he  wills  (s.  3). 

3.  Any  alleged  responsibility  by  a  Trade  Union,  as  a  body, 

for  the  tortious  acts  of  its  officials  or  members  (s.  4). 
And  the  Act  expressly  authorizes^  representatives  of  a  Trade 
Union  or  employer  to  '  attend  at  or  near  a  house  or  place  where 
a  person  resides  or  works  or  carries  on  business  or  happens 
to  be,  .  .  .  merely  for  the  purpose  of  communicating  infor- 
mation, or  of  peacefully  persuading  an}"  person  to  work  or 
abstain  from  working.'  This  new  definition  of  'peaceful  picket- 
ing' is  substituted  for  the  older  definition  given  in  the  Con- 
spiracy and  Protection  of  Property  Act,   1875.^ 

Thus  the  labour  organizations  appeared  to  have  suddenly 
turned  the  whole  fortunes  of  war  in  their  favour.  But  their 
Recent  opponents    are    resourceful ;     and,    even    since    the 

Decisions  passing  of  the  Trade  Disputes  Act,  1906,  have  re- 
covered a  certain  amount  of  ground.     Thus,  it  has  been  held 

1  Lyons  v.  Wilkins  [1899]  1  Ch.  255;  Charnock  v.  Court  [1899]  2  Ch.  35;  Walters 
V.  Green,  ibid.,  696. 

*  6  Edw.  VII,  c.  47.  '  Ss.  1-3. 

*  Richards  v.  Bertram  (1909)  25  T.L.R.  181. 

»  S.  4.  «  S.  3. 


330    A   SHORT  HISTORY   OF  ENGLISH  LAW 

that,  though  a  workman  is  precluded  by  the  express  words  of 
the  Trade  Union  Act,  1871,^  from  bringing  an  action  to  recover 
sick  pay  alleged  to  be  due  to  him  under  the  rules  of  the  Union,^ 
yet  a  member  of  a  registered  Trade  Union  may  obtain  an  injunc- 
tion against  the  Union,  restraining  it  from  applying  its  funds  for 
purposes  beyond  the  proper  objects  of  the  Union,^  and,  further, 
may  secure  protection  against  a  Union  which  threatens  to  expel 
him  for  not  subscribing  to  such  funds.^  Again,  while  the  Court 
of  Appeal  has  confirmed  the  jurisdiction  of  the  Court  to  pro- 
nounce, at  the  instance  of  a  member  of  a  registered  Trade  Union, 
upon  the  validity  or  invalidity  of  any  rule  of  the  Union, ^  it  has, 
just  as  this  book  goes  to  press,  refused  to  enforce,  at  the  instance 
of  a  Union,  a  bond  entered  into  by  one  of  its  members  with  it 
for  return  of  a  large  sum  of  money  paid  to  him  by  the  Union 
as  sick  benefit,  upon  events  which  had  happened.®  Obviously, 
the  rights  and  liabilities  of  Trade  Unions,  and,  therefore,  by 
analogy,  of  other  unincorporated  bodies,  are  in  a  somewhat 
uncertain  condition,  in  which  every  kind  of  surprise  is  possible. 
In  concluding  this  long  and  somewhat  painful  story,  it  is 
pleasant  to  refer  to  the  beneficent  provisions  of  the  Workmen's 
Compensation  Acts  1897,  1900,  and  1906,^  which  have  enabled 
a  workman  who  has  suffered  injury  in  the  course  of  his  employ- 
ment, or  the  dependents  of  a  workman  who  has  been  killed  in 
such  course,  to  recover  compensation  from  his  employers  by 
arbitration  proceedings  in  the  County  Court,  quite  apart  from 
any  question  of  negligence  by  employer  or  fellow-workman.^ 
Doubtless  these  statutes  have  given  rise  to  much  litigation ; 
and  doubtless  they  are  sometimes  abused.  But  the  general 
adoption  of  the  system  of  insurance  against  liability  had  prac- 
tically deprived  the  measures  of  all  terrors  for  ordinarily  prudent 
employers ;    while  the  same  system  has  guaranteed  compensa- 

iS.  4  (3). 

^  Burke  v.  Amalgamated  Society  [1906]  2  K.B.  583;  Russell  v.  Amalgamated 
Society  [1910]  1  K.B.  506. 

'^Amalgamated  Society  v.  Osborne  [1910]  A.C.  87.  *  Id.,  (No.  2). 

<•  Gozney  v.  Bristol,  &c..  Society  [1909]  1  K.B.  901.  (This  case  is  valuable  as  con- 
taining a  repudiation  by  Fletcher  Moulton,  L.J.,  at  p.  919,  of  the  doctrine  that  every 
Trade  Union  is  an  'illegal  association  at  the  common  law.') 

^  Baker  v.  Ingall  [1911]  2  K.B.  132. 

'  60  &  61  Vict.  c.  37 ;   63  &  64  Vict.  c.  22 ;   6  Edw.  VII,  c.  58. 

*  Thus  the  Acts  have,  incidentally,  almost  abolished  the  operation  of  the  doctrine 
of  'common  employment'  {ante,  pp.  317-319)  so  far  as  'workmen'  are  concerned. 
But  in  some  cases  even  workmen  may  have  to  resort  to  the  common  law ;  and,  in 
the  case  of  other  employees,  the  doctrine  ia  still  important. 


CONTRACT  AND  TORT  IN  MODERN  LAW   331 

tion  to  thousands  of  deserving  workmen  who  would  otherwise 
have  been  dependent  on  charity.  Bare  allusion  may  also  be 
made  to  the  Old  Age  Pensions  Act,  1908,  and  the  Insurance 
Act,  1911,  which  will,  in  the  future,  still  further  alleviate  the 
hardships  of  the  poorer  classes  of  the  community.  But  these 
measures  hardly  come  within  the  scope  of  the  present  survey. 


CHAPTER   XVIII 

REFORM  IN  THE   CRIMINAL  LAW 

WE  have  seen  ^  that,  broadly  speaking,  the  Law  of  Crime 
had,  by  the  end  of  the  preceding  period,  definitely 
separated  itself,  both  from  the  older  procedure  by  way 
of  revenge  (the  'appeal  of  felony')  and  from  the  civil  procedure 
of  the  King's  Courts.  This  fact,  however,  only  resulted  at 
first  in  bringing  out,  more  clearly  than  before,  its  barbarous 
character.  Not  only  did  it  recognize,  in  theory,  but  one 
punishment  for  all  serious  offences,  viz.  death  with  confiscation 
of  property,  but  it  clung  to  the  original  idea  that  a  criminal 
prosecution  did  not  really  begin  until  the  accused  had  been  found 
suspect  by  the  Grand  Jury,  and  that,  therefore,  there  was  very 
little  likelihood  of  his  innocence.  Historically  speaking,  as  we 
have  also  seen,-  the  petty  jury,  or  Jury  of  Inquest,  was  a  mere 
after-thought,  designed  to  fill  the  gap  left  by  the  abolition  of  the 
ordeal ;  and  the  presumption  was  heavily  against  the  accused. 
Naturally,  therefore,  he  was  not  given  much  liberty  in  his  defence. 
He  was  not  allowed  to  see  a  copy  of  the  '  indictment '  or  accusation 
preferred  before  the  Grand  Jury  ;  nor  to  obtain  a  list  of  the  Crown's 
witnesses.  It  is  doubtful  whether  he  could  call  witnesses  on  his 
own  behalf.  If  he  could,  they  were  not  allowed  to  testify  on 
oath ;  and  the  rules  as  to  '  interested '  witnesses  excluded,  in  all 
probability,  the  very  persons  upon  whose  testimony  he  most 
relied.  He  was  not  allowed  to  have  counsel  to  speak  for  him ; 
unless  a  point  of  law  arose  at  the  trial.  It  may  be  that  the 
requirement  of  a  preliminary  approval  by  the  Grand  Jury,  of  all 
accusations  of  a  serious  nature,  justified  the  boast  that  a  man 
was  presumed  to  be  innocent  until  he  was  'found'  guilty; 
but  that  presumption  certainly  ceased  to  have  practical  applica- 
tion, so  soon  as  the  Grand  Jury  had  returned  a  'true  bill.' 

'  Ante,  chap.  xi.  '  Ante,  pp.  50,  52. 


REFORM   IN   THE   CRIMINAL   LAW     333 

Happily,  the  record  of  the  period  now  under  review,  save  in 
the  stationary  period  of  the  eighteenth  century,  is  one  of  steady 
progress  towards  enhghtenment  and  humanity  in  the  treatment 
of  criminals. 

The  first  great  reform  was  the  passing  of  the  statute  which 
guaranteed  the  citizen  against  arbitrary  arrest  on  a  criminal 
Habeas  charge  —  the    Habeas    Corpus    Act    of    1679.     The 

Corpus  history  of    the  famous  remedy  of    'Habeas  Corpus' 

is  one  of  the  quaintest  and  most  characteristic  in  English  legal 
literature ;  but  it  can  only  be  briefly  summarized  here.^  In 
the  thirteenth  century,  the  '  Habeas  Corpus '  was  merely  an  or- 
dinary judicial  writ,  the  necessary  incident  of  every  criminal 
trial,  bidding  the  sheriff  or  other  person  charged  with  the  custody 
of  an  accused  person,  'have  his  body'  before  the  Court  for  the 
purpose  of  trial.  Such  a  person  might  be  either  in  actual  custody, 
in  which  case  the  direction  was  merely  formal,  or  he  might  be 
at  large  'on  bail,'  i.e.  on  security  to  give  himself  up  for  trial.^ 
In  that  event,  it  would  be,  practically,  the  duty  of  the  sheriff 
to  see  that  the  accused  was  available  on  the  day  of  trial.^ 

But,  in  the  fourteenth  and  fifteenth  centuries,  there  arose 
the  practice  of  applying  this  judicial  writ  for  the  purpose  of 
Writ  of  carrying  out  the  objects  of  another  and  more  com- 

Priviiege  prehensive  writ,  the  Writ  of  Privilege.  This  latter 
remedy  was  the  process  by  which,  in  the  way  so  characteristic 
of  the  Middle  Ages,  each  tribunal  protected  its  own  officials 
from  unfair  treatment  by  jealous  rivals.  Any  official  of  one 
Court,  who  was  sued  or  prosecuted  in  another,  was  entitled  to 
a  Writ  of  Privilege  to  remove  him  to  his  own  tribunal,  where  he 
was  supposed  to  be  wanted  to  carry  on  official  business."*  If 
he  succeeded  in  establishing  his  right  to  this  writ,  his  own  tri- 
bunal would  send  a  writ  of  Habeas  Corpus  to  the  rival  tribunal 
by  which  he  was  detained,  bidding  the  responsible  official  of 
that  tribunal  'have  the  body'  (of  the  privileged  person)  'before 

1  It  will  be  found  at  greater  length  in  Select  Essays  in  Anglo-American  Legal 
Histo^J^  II,  pp.  531-548,  by  the  author. 

2  The  right  to  bail  was  at  this  time  carefully  regulated  by  the  Statute  of  West- 
minster I  (3  Edw.  I   (1275)  c.  15). 

3  A  very  late  survival,  or  revival,  of  this  use  of  the  Habeas  Corpus  is  that  provided 
by  the  statute  of  1661  against  vexatious  arrests  (13  Car.  II,  st.  II,  c.  2,  s.  5),  in 
actions  against  prisoners  in  the  Fleet  prison. 

*  This  hypothesis  accounts  for  one  of  the  defects  in  the  process  of  Habeas  Corpus 
prior  to  1679,  viz.  that  the  writ  could  not  be  obtained  in  vacation,  when  the  Courts 
"were  closed. 


334    A   SHORT  HISTORY  OF  ENGLISH  LAW 

us'  (on  such  a  day)  'together  with  the  cause'  of  his  deten- 
tion.^ 

A  century  later,  we  find  this  writ  of  'Corpus  cum  causa' 
used  by  the  old-estabUshed  '  superior '  Courts  to  test  the  vaHd- 
Corpus  ity    of   imprisonment    by    their    newer  'prerogative' 

cum  causa  rivals,  or  the  exercise  of  irregular  authority  by  execu- 
tive officials.  The  latter  was  the  more  serious  danger ;  and 
the  successful  claim  to  the  protection  afforded  by  the  writ  es- 
tablished in  two  cases  of  the  year  1588,^  is  a  landmark  in  the 
history  of  the  struggle  between  liberty  and  prerogative.  In  the 
latter  case,  the  applicant  had  been  arrested  by  virtue  of  a  warrant 
signed  by  a  Secretary  of  State ;  and  the  issue  of  the  writ  assumed 
the  inadequacy  of  the  authority.  On  the  trial,  the  Court  re- 
luctantly admitted  the  power  of  the  Privy  Council,  as  a  body,  to 
arrest  without  reason  assigned ;  but,  four  years  later,  the  judges 
adopted  a  famous  resolution,^  to  the  effect  that,  even  in  such 
cases,  the  gaoler  must  produce  the  prisoners  when  required  to 
do  so  by  Habeas  Corpus.  All  pretence  that  the  applicant  was 
an  official  of  the  tribunal  applied  to  had  by  this  time  been  aban- 
doned ;  and  there  is  some  little  evidence  to  show  that  the  Court 
of  Chancery  had  even  made  use  of  the  remedy  in  its  struggle 
with  the  Common  Law  Courts  at  the  beginning  of  the  seven- 
teenth century.^ 

But  the  weakness  of  a  remedy  resting  on  a  series  of  historical 
fictions  appeared  in  the  struggle  between  Charles  I  and  his 
Parliament.  In  the  famous  Case  of  the  Five  Knights 
and  Habeas  in  1627,^  the  Court  of  King's  Bench  remanded  the 
""^^"^  applicants  to  the  Fleet ;   and,  in  spite  of  the  express 

words  of  the  Petition  of  Right  in  1628,®  it  even  refused  to  order 
the  production  of  the  six  members  of  Parliament  arbitrarily 
imprisoned  under  royal  warrant  in  1629.^ 

One  of  the  first  acts  of  the  Long  Parliament,  however,  on  its 
assembling  in  November,  1640,  was  to  pass  a  sweeping  statute 
dealing  with  the  abuses  of  prerogative  jurisdiction ;  and,  in  that 

•  Even  80  recently  as  the  eighteenth  century,  the  great  case  between  the  scriveners 
and  the  attorneys  in  London  (ante,  p.  202,  n.  2)  was  fought  out  on  a  Writ  of  Privilege. 
(See  a  full  account  in  Report  of  the  Proceedings,  Williams,  1768.) 

"Search's  Case,   1   Leon.  70;    Howell's  Case,  ibid.,  71. 
'  Anderson's  Reports,  p.  298. 

*  If  the  Common  Law  Court  committed  a  defendant  to  prison  for  applying  for 
an  injunction  to  stay  proceedings  at  law.  Chancery  would  get  him  out  by  a  Habeas 
Corpus.  6.3  St.  Tr.  pp.  1-235. 

'  3  Car.  I,  c.  1,  bb.  5,  10.  ^  Six  Members  Case,  3  Str.  Tr.  pp.  235-294. 


REFORM  IN  THE   CRIMINAL  LAW    335 

statute,  it  was  provided  that  every  person  imprisoned  by  such 
authority  should  be  entitled  as  of  right  to  his  Habeas  Corpus.^ 
Unfortunately,  in  the  heat  of  debate,  the  clause  was  badly 
worded ;  and,  in  the  later  days  of  Charles  II,  it  was  practically 
set  at  defiance  by  venal  judges  acting  in  the  interest  of  the 
Court.  At  length,  however,  chiefly  as  the  result  of  the  oppressive 
proceedings  in  Je?iks'  Case,^  tried  in  1676,  the  great  statute 
of  the  year  1679^  was  passed.  Its  provisions  are  well  known.  It 
gives  every  prisoner  an  absolute  right  to  have  the  validity  of  his 
imprisonment  speedily  raised  and  discussed  by  a  superior  Court  in 
his  presence,  whether  in  Term  time  or  vacation.  If  the  authority 
under  which  he  is  imprisoned  is  lawful,  as  in  the  ordinary  case  of 
a  prisoner  committed  for  trial,  with  bail  lawfully  refused,  the 
applicant  will,  of  course,  simply  be  remanded  to  prison.^  But 
save  in  the  rare  case  of  an  absolutely  friendless  man  suddenly 
carried  off  to  gaol,  or  an  arrest  so  secretly  effected  that  no  one 
but  the  prisoner  and  his  custodians  are  aware  of  it,  it  is  absolutely 
impossible  for  any  irregularities  in  arrest  or  imprisonment  now 
to  take  place  in  this  country.^  The  most  striking  feature  of 
the  statute  (which  has  since  been  amended  to  include  arrest  on 
civil  process)  ^  is  that  which  imposes  a  heavy  pecuniary  penalty  ^ 
on  any  judge  refusing  the  application  for  the  writ.  This  statute, 
re-inforced  as  it  was  by  the  civil  remedies  applied  in  the  well- 
known  *  General  Warrant '  cases  at  the  end  of  the  eighteenth 
century,^  may  be  said  to  have  definitely  established  in  England 
that  '  Rule  of  Law '  which  is  the  chief  guarantee  of  English 
liberty.  For  both  statute  and  decisions  are  based  upon  the 
principle,  that  even  an  official  acting  under  the  authority  of  the 
Crown  must  show  definite  legal  authority  for  any  act  which 
interferes  with  the  personal  freedom  or  domestic  privacy  of  the 
ordinary  citizen. 

One  of  the  first  reforms  in  the  criminal  law  which  took  place 
Criminal  after  the  Revolution  was  aimed  at  the  abuse  by  which 
tions  the  process   of   criminal   information  was    employed 

by  private  plaintiffs  in  civil  cases,  to  vex  and  oppress  their 

1  16  Car.  I,  c.  10,  s.  8.  '6  St.  Tr.  pp.  1189-1208. 

3  31  Car.  II,  c.  2.  <  Ss.  2,  10. 

'  The  case  of  Ex  parte  D.  F.  Marais  [1902]  A.C.  109,  which  is  not  binding  on 
English  courts,  makes  it  doubtful  whether  this  statement  is  true  of  the  colonies. 

«  56  Geo.  Ill  (1816)  c.  100.  '  31  Car.  II  (1679)  c.  2,  s.   10. 

8  Wilkes  V.  Wood  (1766)  19  St.  Tr.  1153;  Entick  v.  Carrington  (1765)  19  St.  Tr. 
1030 ;   Leach  v.  Money  (1765)  19  St.  Tr.  1001. 


336    A   SHORT  HISTORY  OF  ENGLISH  LAW 

opponents.  The  criminal  information  was,  in  theory,  a 
process  by  which  one  of  the  King's  officials,  e.g.  a  coroner,  in- 
formed His  Majesty  of  the  existence  of  claims  enforceable  by  the 
Crown.  It  was  made  through  the  Master  of  the  Crown  Office, 
the  Chief  Coroner  of  the  Kingdom ;  and  that  official  ought  not, 
of  course,  to  have  allowed  private  suits  to  be  converted  into 
criminal  prosecutions  by  this  means.  Most  abuses  could  be 
practised  for  adequate  consideration  in  the  reign  of  Charles  II ; 
but  the  framers  of  the  Bill  of  Rights  determined  to  suppress  this 
scandal,  and,  though  the  clause  was  struck  out  of  their  draft, 
a  statute  ^  was  devoted  to  the  subject  in  1G92.  By  that  Act,  the 
Clerk  of  the  Crown  in  the  King's  Bench  is  forbidden  to  receive 
any  such  information ;  except  under  an  order  pronounced  in  open 
Court,  or  on  the  security  by  the  informer  in  £20  for  prompt 
prosecution,  and  payment  of  costs  if  unsuccessful.  To  this 
statute  we  probably  owe  the  rule  that  a  common  trespass  is  not 
now  a  criminal  offence,  and  that  the  words  so  frequently  to  be 
seen  disfiguring  the  country-side  —  '  Trespassers  will  be  prose- 
cuted '  —  are,  as  has  been  wittily  said,  a  '  wooden  falsehood.' 

If  William  of  Orange  had  no  other  claim  to  the  gratitude  of 
the  Englishman  of  his  day,  he  would  have  been  entitled  to 
Trials  for  ^^  ^^r  assenting  to  the  noble  Treason  Act  of  1695.^ 
Treason  gy  that  statute,  the  procedure  on  trials  for  that  very 
offence  which  is  most  apt  to  inspire  severity  in  rulers,  was  brought, 
almost  at  one  step,  to  the  modern  plane  of  humanity  and  justice. 
All  persons  prosecuted  for  treason,  or  misprision  {i.e.  conceal- 
ment) of  treason,  are. to  have  a  copy  of  the  indictment  delivered 
to  them  five  days,  and  a  copy  of  the  '  panel '  or  jury  list  two 
days,^  at  least,  before  their  trials ;  they  may  be  represented  by 
counsel  at  their  trials,  and  may  call  witnesses  who  shall  give 
evidence  on  oath.  If  the  accused  is  too  poor  to  retain  the 
services  of  counsel,  the  Court  must  assign  him  two  of  his  own 
choice,  free  of  expense.^  No  prosecution  for  treason  or  misprision 
committed  in  England  (except  a  direct  design  on  the  life  of  the 
King)  is  to  be  commenced  more  than  three  years  after  the  date 

'  4  &  5  W.  &  M.  c.  18.  2  7  &  8  Will.  Ill,  c.  3. 

'  S.  7.  The  right  of  a  person  accused  to  'challenge'  or  reject  jurors,  was  reg- 
ulated by  33  Hen.  VIII  (1541)  c.  23,  s.  3,  which  forbade  'peremptory'  challenges 
for  treason.  But  the  right  of  the  accused  to  challenge  'for  cause'  had  been  also 
rendered  nugatory  by  the  secrecy  preserved  as  to  the  composition  of  the  list. 

*  S.  1. 


REFORM  IN  THE   CRIMINAL  LAW    337 

of  the  alleged  commission.^  Finally,  by  what  is,  perhaps,  the 
most  striking  provision  of  all,  no  one  may  be  tried  for  treason  or 
misprision  except  on  the  oaths  of  two  witnesses,  who,  though 
they  need  not  speak  to  the  same  precise  act  or  acts,  must  testify 
to  the  same  kind  of  treason.^ 

The  later  years  of  the  seventeenth  century  were  also  memorable 
for  the  introduction  of  the  system  of  '  transporting '  offenders 
Transporta-  beyond  the  seas  to  the  newly-acquired  possessions 
^°°^  of  the  Crown,  where  the  scarcity  of  labourers  rendered 

them  welcome  immigrants.  As  a  stage  in  the  evolution  of 
criminal  law,  the  practice  was  eminently  humane,  and  beneficial 
for  both  the  parties  to  the  transaction.  But,  as  it  involved  com- 
pulsory exile,  it  could  at  first  only  be  applied  to  persons  who 
voluntarily  accepted  it  as  an  alternative  of  capital  punishment. 
There  was  no  power  to  transport  a  convict,  if  he  preferred  to  be 
hanged.  But,  in  the  year  1717,^  this  scruple  was  overruled  by  a 
statute  which  allowed  sentence  of  transportation  to  be  passed 
upon  all  offenders  entitled  to  '  benefit  of  clergy,'  ^  for  a  period 
of  seven  years,  and  upon  other  convicted  offenders  for  twice  that 
period. 

Again,  the  thick  darkness  of  the  eighteenth  century  descended 
upon  the  criminal  law ;  but  at  the  very  end  of  that  century  we 
stipendiary  g^t  an  important  statute,^  connected  with  the  im- 
Magistrates  mortal  name  of  Fielding,  which  sets  up  a  small  body 
of  skilled  and  salaried  ^Metropolitan  magistrates,  in  place  of 
the  old  '  trading  justices,'  paid  only  by  fees,  whose  conduct  was 
a  disgrace  to  the  administration  of  the  criminal  law.  These 
'  trading '  Justices,  mostly  uneducated  men,  of  no  morality  but 
considerable  natural  parts,  ignoring  the  '  watch '  or  official 
guardians  of  the  peace,  had  employed  a  semi-professional  body 
of  '  runners,'  devoted  to  their  masters'  interests,  and  entirely 
unscrupulous  in  the  exercise  of  their  special  knowledge.  Accord- 
ingly, if  the  prosecutor  made  it  worth  while  for  the  Justice  to 
exert  his  powers,  the  criminal  was  speedily  brought  to  book ; 
while,  if  the  latter  outbid  his  adversary,  he  enjoyed  practical 
immunity.  Any  prospect  of  a  falling  off  in  the  magisterial 
income  had  been  promptly  remedied  by  a  raid  among  prostitutes, 

»  S.  5.  2  sg    2,  4. 

'4  Geo.  I,  c.   11.  *  Ante,  pp.  156-158. 

*  32  Geo.  Ill,  c.  53.  (Of  course  it  is  not  suggested  that  Henry  Fielding  lived 
until  1792.     But  the  suggestion  was  due  to  him.) 


338    A  SHORT  HISTORY  OF  ENGLISH  LAW 

gamblers,  cut-purses,  and  other  habitual  offenders ;  upon  whom 
an  extra  arrest  or  two  made  little  impression,  but  who  could  be 
made  to  yield  fines.  The  new  system  worked  so  well,  that  it 
was  extended  to  other  municipalities,  which  chose  to  apply  for  it, 
in  1835.^ 

IVIeanwhile,  the  loss  of  the  American  colonies  had  practically 
put  a  stop  to  the  process  of  transportation,  which  had  grown 
Penal  by  leaps  and  bounds  since  its  legalization  in  1717; 

Servitude  .^^-^^  ^j^g  difficulty  had  been  met  by  the  substitu- 
tion of  the  new  form  of  punishment  known  as  *  penal  servi- 
tude,' i.e.  imprisonment  —  no  longer,  as  in  the  old  days,  mere 
stupid,  aimless  confinement,  but  restriction  of  liberty  accom- 
panied by  compulsory  labour.  At  first  the  process  was  carried 
out  in  ships  moored  in  the  Thames  and  other  rivers,  known 
popularly  as  '  the  hulks ' ;  and  there  can  be  no  doubt  that,  at 
first,  it  was  very  imperfectly  administered.  Moreover,  the 
practice  of  sending  convicts  to  the  newly-acquired  colonies  in 
Australia  for  a  time  rendered  its  development  less  urgent.  But 
when  the  outflux  to  Australia  was  also  closed,^  as  that  to  America 
had  been,  the  '  penal  servitude '  system,  greatly  improved  by 
the  introduction  of  'ticket-of-leave,' ^  good-conduct  marks, 
police  supervision,  the  'Borstal  system'  for  juvenile  offenders,* 
and  other  modern  developments  of  scientific  criminology,  has 
become  the  chief  engine  for  the  enforcement  of  the  criminal  law 
in  the  more  serious  classes  of  cases.  The  power  to  add  'hard 
labour'  and  solitary  confinement  to  a  sentence  of  imprisonment 
was  conferred  in  1827.^ 

But  it  was  not  sufficient  to  improve  the  mere  machinery  of 
the  criminal  law,  while  the  substance  of  that  law  remained  in 
Peel's  Acts  ^^^  barbarous  condition.  Accordingly,  even  before  the 
passing  of  the  Reform  Act,  a  series  of  statutes,  con- 
nected with  the  name  of  Sir  Robert  Peel,  was  passed  with  the 
object  of  moderating  that  sanguinary  code.  By  the  Act  of 
1827,®  previously  referred  to,  the  tendency  which,  as  we  have 
seen,^  had   formerly  manifested  itself,  to  distinguish  between 

1  Municipal  Corporations  Act  (5  &  6  Will.  IV.  c.  76,  s.  99). 

2  In  the  year  1853.  The  process  was  prohibited  by  statute  in  1857  (20  &  21 
Vict.  c.  3.  s.  2). 

'  Penal  Servitude  Act,  1853  (16  &  17  Vict.  c.  99)  ss.  9-11. 

*  Prevention  of  Crime  Act,  1908  (8  Edw.  VII.  c.  59)  ss.  1-4. 

»  7  &  8  Geo.  IV,  c.  28,  s.  9.  «  7  &  8  Geo.   IV,  c.  28. 

'  Ante,  pp.  151-153. 


REFORM   IN   THE   CRIMINAL   LAW    339 

capital  and  non-capital  felonies,  was  given  a  wide  extension. 
No  longer  was  the  mere  declaration  by  a  statute  that  certain 
acts  should  be  'felonious'  to  render  them  capital  offences;  no 
new  offence  was  to  be  capital  unless  expressly  declared  so  to 
be.  And,  as  a  fact,  opportunity  was  taken,  in  the  almost  con- 
temporary group  of  statutes  known  as  'Peel's  Acts,'^  to  remove 
the  death  penalty  in  many  cases ;  though  it  was  still  allowed  to 
figure  far  too  frequently  in  the  statute-book. 

The  passing  of  the  Reform  Bill  was  speedily  followed  by 
renewed  efforts  in  this,  as  in  other  directions.  Spurred  on  by 
the  energies  and  reputation  of  the  veteran  jurist  Jeremy  Bentham, 
and  of  his  enthusiastic  disciples,  a  Royal  Commission  went 
thoroughly  through  the  whole  of  the  criminal  law,  and  produced 
a  crop  of  amending  statutes,  which  passed  into  law  in  the  year 
1837,^  shortly  after  the  accession  of  the  youthful  Queen  Victoria. 
It  is  impossible  to  go  into  details  of  them ;  but  attention  may  be 
especially  drawn  to  the  last  of  the  group,^  which  abolished  the 
death  penalty  in  the  case  of  a  large  number  of  offences,  such  as 
riot,  rescue,  seducing  from  allegiance,  administering  unlawful 
oaths,  prison-breach,  slave-trading,  and  certain  forms  of  smug- 
gling. On  the  other  hand,  it  should  not  be  forgotten  that  the 
system  of  trained  and  disciplined  police,  introduced  by  Sir  Robert 
Peel  into  London  in  the  year  1829,^  was  extended  to  the  munici- 
pal boroughs  by  the  Reform  Act  of  1835 ;  and  that  thus  the 
criminal  law,  if  it  had  become  more  lenient,  was  infinitely  better 
enforced,  than  in  the  old  days  of  the  watch  and  parish  constable. 
The  system  of  police  in  the  boroughs,  however,  and  in  the  counties, 
where  it  was  introduced  in  1839,^  was  not  made  compulsory  till 
the  year  1856.^  It  should,  moreover,  be  remembered  in  this 
direction,  that,  if  the  skill  and  certainty  of  prosecutions  had 
been  increased,  the  chances  of  a  successful  defence  had  also 
been  largely  increased  by  an  important  statute,  the  Trials  for 
Felony  Act,  passed  in  the  year  1836,^  which  extended  to  the 
accused  in  all  cases,  whether  tried  by  indictment  or  summarily, 
the  right  to  be  defended  by  counsel,  and  gave  to  all  prisoners 

^  The  chief  subjects  affected  were— (1)  larceny  and  malicious  injuries  to  prop- 
erty (1827)  ;  offences  against  the  person  (1828)  ;  forgery  (1830)  ;  the  coinage  (1832). 

-  The  chief  are  7  Will.  IV  &  1  Vict.  c.  84  (forgery),  c.  85  (offences  against  the  per- 
son), c.  86  (burglary),  c.  87  (robbery  and  theft  from  the  person),  c.  88  (piracy), 
c.  89  (arson),  c.  90  (transportation),  c.  91   (capital  punishment). 

»  7  Will.  IV  &  1  Vict.  c.  91.  *  10  Geo.  IV,  c.  44. 

^2  &  3  Vict.  c.  93.  «  19  &  20  Vict.  c.  69.  '  6  &  7  Will.  IV,  c.  114, 


840    A   SHORT  HISTORY  OF  ENGLISH  LAW 

the  right  to  have  copies  of  the  depositions  of  the  Crown  witnesses, 
or  to  inspect  such  depositions  at  their  trial. 

The  next  important  year  in  the  history  of  the  Criminal  Law 
is  1848,  the  year  of  European  revolutions.  In  that  year  was 
Sir  John  passed  the  important  trio  of  statutes  known  as  *  Sir 
jervis'  Acts  Jq}^j^  Jervis'  Acts.'  These  are  concerned  with  the 
jurisdiction  of  the  Justices  of  the  Peace,  which,  with  the  enormous 
increase  in  the  population,  had  become  of  ever-growing  im- 
portance. The  statutes  distinguish  clearly  between  the  merely 
preliminary,  and  the  judicial  work  of  the  magistrates.  In  the 
former,^  the  sole  object  of  the  Justices  is  to  see  whether  there  is 
such  a  prima  facie  case  against  the  accused  as  will  justify  them 
in  committing  him  for  trial.  But  it  is  recognized,  that  even 
mere  committal  for  trial  is  a  heavy  blow  to  an  innocent  man ; 
and,  accordingly,  the  accused  is  to  have  the  opportunity,  if  he 
desires  it,  of  cross-examining  the  witnesses  for  the  prosecution,  and 
to  be  represented  by  counsel  or  solicitor.^  Moreover,  to  prevent 
groundless  accusations,  he  may  only  be  arrested,  in  the  first 
instance,  if  a  sworn  information  has  been  laid  against  him ;  on  a 
mere  summons,  he  cannot  be  arrested  unless  he  fails  to  appear 
and  make  his  defence.^  And,  all  through  the  preliminary  pro- 
ceedings, the  accused  is  entitled  to  bail;  except  on  the  heavy 
accusations  in  which  the  magistrates  are  entitled  to  refuse  bail, 
or  even  unable  to  grant  it.^  Moreover,  it  is  expressly  provided,^ 
that  the  room  in  which  the  preliminary  examination  takes  place, 
shall  not  be  deemed  an  open  Court,  and  that  the  magistrates 
may  exclude  the  public,  if  they  think  that  such  a  course  will  best 
serve  the  ends  of  justice. 

The  second  of  Sir  John  Jervis'  Acts,  the  Summary  Jurisdic- 
tion Act,  1848,  deals  with  the  final  or  judicial  work  of  the  Justices. 
This  had  also  grown  enormously  in  recent  years ;  especially  in 
its  'summary'  aspect,  i.e.  when  the  magistrates  sat  without  a 
jury  to  dispose  of  minor  accusations.  Here  again  arose  the 
question  which,  as  we  have  seen,^  was  left  in  a  somewhat  un- 
certain condition  at  the  close  of  the  preceding  period.  Techni- 
cally, all  such  'summary  jurisdiction'  was  still  exercised  'out 

1  11  &  12  Vict.  c.  42. 

*  11  &  12  Vict.  c.  42,  8.  17.  The  right  of  the  accused  to  call  witnesses  at  this 
Btage  was  not  conferred  till  1867  (Criminal  Law  Amendment  Act,  30  &  31  Vict. 
c.  35,  s.  3). 

»S.  9.  *S.  21.  ^S.  19.  M«<e,  pp.  151-154. 


REFORM   IN   THE   CRIMINAL  LAW    341 

of  sessions,'  i.e.  Quarter  Sessions.  But  more  and  more  it  was 
coming  to  be  regarded  as  unsuitable  work  for  the  Justice's  private 
room ;  and,  though  the  decisive  enactment  which  made  all  such 
business  matter  only  for  a  Court  of  two  ordinary  Justices  or  one 
Stipendiary,  sitting  in  an  open  Court  House,  was  postponed 
till  1879,^  yet  the  Act  of  1848,  which,  moreover,  clearly  recognizes 
a  right  of  appeal  in  every  case  to  Quarter  Sessions,"  goes  far  in 
that  direction.^ 

Finally,  the  third  of  Sir  John  Jervis'  Acts,  the  'Justices' 
Protection  Act,'  ^  by  a  very  rare  exception  from  the  '  Rule  of 
Law,'  granted  in  recognition  of  the  unpaid  services  of  the  bulk 
of  the  magistracy,  mitigates,  to  a  certain  extent,  the  sharpness 
of  the  common  law  rule,  that  even  for  a  mere  technical  breach 
of  the  law,  innocently  committed  in  the  exercise  of  his  functions, 
a  magistrate  is  personally  liable  to  the  injured  party. 

Another  Royal  Commission  on  the  Criminal  Law,  which  sat 
for  several  years  prior  to  1861,  was  responsible  for  an  important 
Consoiida-  group  of  consolidating  statutes  which,  though  not  in 
tion  of  i86i  themselves  amounting  to  a  Criminal  Code,  gave  fair 
promise  of  the  appearance  of  such  a  code  in  the  future.  These 
are  the  five  great  enactments  of  the  year  1861,^  which  deal  respec- 
tively with  larceny,  malicious  damage  to  property,  forgery,  false 
coinage,  and  offences  against  the  person.  They  still  regulate,  to 
a  great  extent,  the  everyday  business  of  the  criminal  courts; 
and,  in  the  opinion  of  so  well-qualified  a  critic  as  the  late  Sir 
Fitz-James  Stephen,^  have  been  productive  of  immense  good. 
An  attempt  was  made  to  add  a  Homicide  Act  in  1874 ;  ^  but  the 
times  were  not  propitious,  and  the  effort  was  unsuccessful.  A 
very  recent  enterprise  in  another  direction  has  been  more 
fortunate ;  and  the  value  of  the  consolidating  Perjury  Act  of 
1911^  may  be  gathered  from  the  suggestive  fact,  that  it  repeals, 
in  whole  or  in  part,  no  less  than  131  other  statutes,  among 
which  the  statutory  law  of  perjurj^  had  previously  been  dispersed. 

The  remaining  events  to  be  recorded  in  the  history  of  the 
Criminal    Law  have   been  mainly  concerned  with  procedure; 

1  Summary  Jurisdiction  Act,  1879  (42  &  43  Vict.  c.  49)  s.  20. 

2  S.  27.  3  s_  12.  Ml  &  12  Vict.  c.  44. 

^  24  &  25  Vict.  c.  96  (larceny),  c.  97  (malicious  damage),  c.  98  (forgery),  c.  99 
(coinage),  and  c.   100  (offences  against  the  person). 
^  Digest  of  the  Criminal  Law,  Preface,  p.  xvi. 
'  Ibid.,  p.  1.  8 1  &  2  Geo.  V,  c.  6. 


342    A   SHORT  HISTORY  OF  ENGLISH  LAW 

although,  in  this  branch  of  the  law,  the  connection  between 
substance  and  procedure  is  exceptionally  close. 

An  important  statute  passed  in  the  year  18G5,  the  Criminal 
Procedure  Act,^  by  avow^edly  setting  up,  as  a  model  of  a  criminal 
trial  the  practice  followed  in  civil  cases  between  private  persons, 
gave  to  English  criminal  procedure  its  most  striking  features. 
The  Crown  steps  down  from  its  prerogative  pedestal,  and  enters 
the  lists  as  an  ordinary  litigant,  abandoning  the  formidable 
prerogative  weapons  which,  for  so  long,  as  the  outcome  of  histori- 
cal causes,  had  been  at  the  disposal  of  its  representatives.  The 
speeches  of  counsel  are  regulated  with  strict  impartiality,  as 
between  prosecution  and  accused ;  ^  the  prosecution  may  not 
discredit  its  own  witnesses  if  they  are  favourable  to  the  accused ;  ^ 
w^hile  all  witnesses  may  be  confronted  with  previous  statements 
made  by  them  relative  to  the  subject-matter,^  and  may  even  be 
cross-examined  on  such  of  them  as  are  in  writing.^  Moreover, 
either  side  is  entitled  to  show  that  a  witness  produced  by  the 
other  has  previously  been  convicted  of  a  criminal  offence;^ 
though  whether  this  provision,  at  the  present  day,  works  in 
favour  of  accused  persons,  may  be  considered  doubtful.  In 
former  times,  when  the  evidence  of  'common  informers'  was 
much  more  relied  upon  than  at  present,  it  would  have  been  of 
great  value  to  them  in  many  cases.  The  assimilation  of  a 
criminal  to  a  civil  trial  w^as  rendered  yet  more  complete,  by 
the  passing  of  the  Costs  in  Criminal  Cases  Act,  1908,^  which 
enables  any  Court  by  which  an  indictable  offence  is  tried,  or 
proceedings  preliminary  to  the  trial  of  such  case  conducted,  to 
award  costs  to  the  prosecution  or  the  defence.  The  analogy, 
however,  breaks  down  in  the  method  of  securing  fulfilment  of  the 
award ;  for,  in  cases  covered  by  the  statute,  the  costs  are  first 
paid  out  of  public  funds,  and  then  recovered  (if  possible)  by  the 
public  authority  from  the  imsuccessful  party. 

The  procedural  reform  of  18G5  was  rapidly  followed  by  the 
abolition  of  public  executions  for  felony,^  and  of  the  barbarous 
system  of  escheat  and  forfeiture  which  reduced  to  beggary  the 
families  of  men  of  substance  who  had  strayed  from  the  paths  of 

1  28  &  29  Vict.  c.   18. 

^  S.  2.     (The  privilege  of  the  reply,  which  can   be  claimed   by  the  Attorney- 
General,  even  when  the  prisoner  calls  no  evidence,  is,  however,  not  abolished.) 
»  S.  .3.  "  S.  4.  6  S.  5.  «  S.  6. 

'  8  Edw.  VII,  c.  15.  8  31  &  32  Vict.  (1868)  c.  24. 


REFORM   IN  THE   CRIMINAL  LAW     343 

virtue.^  In  the  year  1879,  the  ancient  connection  between 
private  vengeance  and  pubUc  prosecution  was  finally  severed,  or, 
at  least,  reduced  to  the  slenderest  proportions,  by  the  establish- 
ment of  a  Public  Prosecutor,  or  Director  of  Public  Prosecutions, 
charged  with  the  institution  and  carrying  on  of  criminal  proceed- 
ings in  the  interests  of  justice,  and  of  giving  advice  and  assistance 
to  police  officers,  magistrates'  clerks,  and  other  persons,  official 
or  private,  concerned  in  criminal  proceedings.^  The  right  of  a 
private  person  to  take  up,  or  insist  on  continuing,  a  prosecu- 
tion, is  strictly  preserved ;  ^  but,  as  the  special  scandal  which  the 
Act  was  directed  to  meet  was  the  unwillingness  of  private  prose- 
cutors to  undertake  costly  proceedings,  and  the  consequent 
immunity  of  well-known  offenders,  it  may,  perhaps,  be  safely 
predicted,  that  this  part  of  the  statute  is  not  likely  to  prove  the 
most  valuable  in  practice.  The  establishment  of  the  new  official, 
whose  functions  were,  until  quite  recently,  combined  with  those  of 
the  Solicitor  to  the  Treasury  and  the  King's  Proctor,  of  course 
in  no  way  derogates  from  the  long-established  tradition,  which 
makes  the  Attorney-General  the  mouthpiece  and  adviser  of  the 
Crown  in  all  criminal  matters.  In  fact,  the  statute  creating 
the  office  places  it  under  regulations  made  by  the  Attorney- 
General  with  the  approval  of  the  Lord  Chancellor  and  a  Secretary 
of  State. ^  The  Director  of  Public  Prosecutions  is,  however, 
appointed  by  the  Secretary  of  State,  not  by  the  Attorney- 
General.^ 

In  the  year  1898,  was  passed  the  important  Criminal  Evidence 
Act,^  which  put  the  crown  on  the  long  series  of  statutes  passed 
Criminal  in  the  nineteenth  century,  with  the  object  of  liberalizing 
the  law  of  evidence.  We  have  seen  ^  how  this  move- 
ment began  with  the  subject  of  testamentary  witnesses.  In  the 
year  1843,  Lord  Denman's  Act^  had  admitted,  generally,  the 
advisability  of  hearing  all  witnesses,  whether  interested  or  not, 
in  both  criminal  and  civil  proceedings ;  but  it  had  stopped  short 
of  the  admission  of  parties,  their  husbands  or  wives.  In  1851, 
the  second  of  Lord  Brougham's  Evidence  Acts  ^  had  departed  from 

1  33  &  34  Vict.  (1870)  c.  23. 

242  &  43  Vict.  c.  22,  s.  2.  '  Ss.  6,  7. 

*  Prosecution  of  Offences  Act,  1879,  s.  8.  *  S.  2. 

« 61  &  62  Vict.  c.  36.  '  Ante,  p.  270. 

8  Evidence  Act,  1843  (6  &  7  Vict.  c.  85,  s.  1). 

'Evidence  Act,  1851  (14  &  15  Vict.  c.  99,  s.  2). 


344    A   SHORT  HISTORY   OF  ENGLISH  LAW 

the  last  exclusion,  and  admitted  the  evidence  of  parties ;  ^  but, 
again,  it  had  expressly  excluded  the  evidence  of  an  accused  person 
in  a  criminal  trial,  and  his  or  her  wife  or  husband."  At  length, 
however,  after  considerable  hesitation,  this  ancient  disability  was 
swept  away  by  the  enactment  of  1898,  which  makes  the  accused, 
and  his  or  her  wife  or  husband,  competent  witnesses  in  a 
criminal  prosecution,^  and  even  allows  the  wife  or  husband  to 
be  summoned  in  a  few  special  cases  without  the  consent  of  the 
accused.^  But,  generally  speaking,  neither  can  the  accused 
himself  be  compelled  to  give  evidence,  nor  can  his  or  her  wife 
or  husband  be  called,  except  upon  the  application  of  the  accused.^ 
Moreover,  the  fact,  that  the  accused  has  not  volunteered  testi- 
mony, may  not  be  commented  on  by  the  prosecution ;  ^  though, 
apparently,  there  is  nothing  to  prevent  the  Court  making  such  a 
comment. 

A  more  decided  benefit  was  conferred  upon  accused  persons 
by  the  Poor  Prisoners'  Defence  Act  of  1903,'^  by  which  the 
Poor  magistrates  committing  a  prisoner  for  trial,  or  the  judge 

Prisoners'       before  the  hearing  of  the  trial,  mav  certifv  for  legal  aid  : 

Defence  .  >         .  i-  o  ' 

whereupon  the  prisoner  becomes  entitled  to  have 
solicitor  and  counsel  assigned  to  him  at  the  public  expense.^  But 
the  most  striking  evidence  of  the  sensitiveness  of  the  public 
conscience  in  the  administration  of  the  criminal  law  was  the 
establishment,  in  the  year  1907,  of  the  Court  of  Criminal  Appeal, 
consisting  of  the  Lord  Chief  Justice  and  eight  King's 
Criminal  Bench  judges,  of  whom  three,  or  any  greater  uneven 
^^^  number,   constitute    a  quorum.^     Under  the  statute 

establishing  this  tribunal,  any  prisoner,  convicted  on  indictment, 
may,  with  the  leave,  either  of  the  tribunal  itself  or  the  Court 
which  tried  him,  appeal  on  grounds  of  fact,  or  mixed  law  and  fact, 
or  any  other  ground,  against  his  conviction ;  while,  with  the 
leave  of  the  appellate  tribunal,  he  may  even  appeal  against  the 
amount  of  his  sentence,  unless  that  is  fixed  by  law.^"  The  Court 
of  Criminal  Appeal,  on  the  hearing  of  an  appeal,  may  totally 
quash  the  conviction,  or  alter  the  sentence  (not  necessarily  in  the 

'  Apparently  not  their  husbands  or  wives.  But  this  omission  was  rectified  (with 
certain  precautions)  by  the  Evidence  Amendment  Act,  1853  (16  &  17  Vict.  c.  83, 
e.  1). 

^^S.  3.  3  61  &  62  Vict.  c.  36,  s.  1. 

*  S.  4.     (But  not  against  the  will  of  the  witness.) 

*S.  1  (a)  (c).  ^Ihid.,  (h).  7  3Edw.  VII,  c.  38. 

«  S.  1.  97  Edw.  VII,  c.  23,  s.  1.  "  S.  3. 


REFORM   IN   THE    CRIMINAL   LAW     345 

appellant's  favour) ;  ^  but,  if  it  thinks  the  appellant  was  rightly 
convicted,  it  is  not  bound  to  decide  in  his  favour  on  a  technical 
point,-  and,  even  though  the  appellant  succeeds  in  upsetting 
the  conviction  on  one  charge  in  an  indictment,  or  in  showing  that 
he  has  been  found  guilty  of  an  offence  which  he  did  not  commit,  he 
may  yet  be  made  to  serve  a  proportionate  sentence  in  respect  of 
a  charge  on  which  he  was  properly  found  guilty,  and  be  sentenced 
as  for  conviction  on  the  offence  which  he  really  did  commit.^ 
The  Court  of  Criminal  Appeal  has,  however,  no  power  to  direct 
a  new  trial.  The  statute  affects  neither  the  prerogative  of 
mercy  ^  nor  the  former  right  of  the  accused  to  appeal  on  a  point 
of  law.^  But,  in  the  event  of  the  latter  being  exercised,  the  appeal 
will  be  heard  by  the  new  tribunal,  which  has  taken  over  the 
duties  of  the  old  Court  for  Crown  Cases  Reserved.^ 

1  S.  4.  2  s_  4_ 

^  S.  5.     (Of  course  it  must  be  clear  that  the  jury  were  satisfied  of  facts  sufficient 
to  justify  the  amended  conviction.) 

^S.  19.  sg.  3  (a),  eg^  20  (4). 


CHAPTER   XIX 
MODERN   CIVIL  PROCEDURE 

IMMEDIATELY  after  the  Restoration,  steps  were  taken 
to  modify  what,  as  we  have  seen  in  a  former  chapter,^  had 
become  the  most  striking  abuse  of  civil  process  in  per- 
sonal actions,  viz.  the  power  of  the  plaintiff  to  arrest  the  de- 
fendant on  mesne  process,  before  proving  his  claim,  and  either 
to  hold  him  in  prison  till  the  trial  of  the  action,  or  to  compel  him 
to  give  heavy  bail  to  secure  his  freedom.  We  have  seen,  also, 
how  this  abuse  had  been  the  means  by  which  the  rival  Courts  of 
Common  Law  had  stolen  one  another's  jurisdiction,  and  how, 
therefore,  in  spite  of  the  enactment  passed  in  the  fifteenth 
century  to  modify  it,"  it  speedily  revived  again  and  flourished 
with  all  its  old  vigour. 

It  is  to  be  feared,  however,  that  the  Restoration  attempt  at 
reform  was  hardly  due  to  the  purest  of  motives.  If  the  testi- 
.       ^  monv  of  the  time  can  be  trusted,^  it  was  due  to  the 

Arrest  on  ,         ' 

Mesne  jealousy  of  the  judges  and  officials  of  the    Court  of 

Common  Pleas,  who  saw  with  anger  their  once  flour- 
ishing and  (as  they,  not  unfairly,  alleged)  proper  business,  filched 
away  by  the  King's  Bench,  with  its  cheaper  processes  of  Bills  of 
Middlesex  and  Latitats. 

The  first  effort  made  by  the  Common  Pleas  was  through 
the  Chancellor,  Lord  Clarendon,  who,  as  will  be  remembered, 
in  his  capacity  of  Custodian  of  the  Great  Seal,  was  supposed  to 
authorize  the  issue  of  all  the  Writs  Original,  the  proper  process 
with  which  to  commence  an  ordinary  civil  action.  The  Chan- 
cellor, accordingly,  in  his  Orders  in  Chancelry  of  1660,^  forbade 
the  Cursitors  to  issue  writs  returnable  in  the  King's  Bench 
containing  the  famous  ac  etiam  clause  ;  ^  on  the  ground  that  they 

^  Ante,  pp.  169-174.  '23  Hen.  VI  (1444)  c.  9  (5). 

'  See,  for  example,  Hale,  Discourse,  &c.,  Hargrave's  Law  Tracts,  Vol.  I,  pp» 
367-368 ;    North,  Lives  of  the  Norths.  I.  uar.  146. 

«Pp.  80-82.  ^Ante,  pp.   170,  171. 


MODERN   CIVIL  PROCEDURE  347 

were  *  to  the  great  damage  of  the  subject  .  .  .  and  of  His 
Majesty's  Revenue  for  the  casual  fines  due  and  payable  on  the 
proper  Original  Writs.'  But,  in  the  following  year,  the  Common 
Pleas  achieved  a  still  more  striking  victory  in  Parliament,  by 
securing  the  enactment  of  a  statute  ^  which  provided,  that  no 
A  t  f  66  ^^^^'  bailable  under  the  statute  of  1444,  should  be  kept 
in  prison,  by  colour  of  any  writ,  bill,  or  process, 
issuing  out  of  the  King's  Bench  or  Common  Pleas,  in  which  the 
certainty  and  true  cause  of  action  was  '  not  expressed  particu- 
larly,' but  that  any  one  so  arrested  should  be  entitled  to  his 
immediate  freedom,  on  giving  security  in  a  sum  not  exceeding 
£40  for  his  appearance. 

This  statute,  though  speciously  worded  to  cover  both  Courts, 
was  thought,  at  the  time,  by  both  to  have  inflicted  a  deadly  blow 
upon  the  Court  of  King's  Bench,  whose  writs  of  Latitat  and  Tres- 
pass quare  clausum  f regit,  did  not  specify  the  precise  nature  of  the 
cause  of  action,  or  the  amount  of  damage  claimed  by  the  plaintiff. 
Indeed,  they  could  not  well  do  so,  inasmuch  as  the  trespass  in 
question  was  wholly  fictitious.  But  the  Court  of  King's  Bench 
quickly  recovered  from  its  temporary  defeat,  by  the  simple  ex- 
pedient of  adding  to  its  formal  Latitat  or  Trespass  an  amended 
ac  etiam  clause,  in  which  the  cause  of  action  was  stated  to  be  a 
plea  of  Debt  or  Case  in  the  sum  of  £200,  or  whatever  it  might  be.^ 
The  object  of  this  change  is  freely  admitted  by  Sir  Matthew 
Hale,^  who,  with  statesman-like  impartiality,  reviews  the  whole 
dispute  on  the  merits,  i.e.  the  merits  of  the  Courts,  and  proposes 
various  compromises.  The  Court  of  King's  Bench  also  took  care 
that  the  new  process  should  not  be  abused,  by  forbidding  its 
application  to  heirs  or  personal  representatives.^ 

But  the  Court  of  Common  Pleas  was  in  no  mood  to  listen  to 
proposals  of  compromise ;  and,  under  the  guidance  of  its  new 
Chief,  Sir  Francis  North,  afterwards  Lord  Chancellor  Guilford,  it 
retorted  by  once  more  making  use  of  the  Writ  of  Trespass  quare 
clausum  f regit,  which  was,  apparently,  '  not  finable,'  ^  and,  by 
another  ac  etiavi  clause,  tacking  on  to  it  the  true  cause  of  action.^ 

1  13  Car.  II,  St.  II,  (1661)  c.  2,  s.  2.  2  Hale,  op.  cit.,  p.  368. 

Ubid. 

^Orders  of  the  King's  Bench  in  1663  (ed.  1796,  p.  48). 

^  This  was,  probably,  yet  another  peculiarity  of  the  Writ  of    Trespass.     The 
King  could  hardly  demand  a  big  fee  for  enforcing  his  own  peace. 
*  North,  op.  cit.,  I.  par.  147. 


348    A   SHORT  HISTORY  OF  ENGLISH  LAW 

Thus  the  Common  Pleas  was  able  to  offer  as  equally  cheap  a 
remedy  as  the  King's  Bench,  combined  with  an  equally  potent 
power  of  arrest  on  special  bail.  And  thus  the  whole  ostensible 
purpose  of  the  statute  of  1661  was  apparently  defeated ;  al- 
though, owing  to  the  obscurity  of  the  quarrel,  we  cannot  be  quite 
certain  what  happened.^  It  is,  however,  satisfactory  to  find, 
that  repeated  attempts  were  made  by  the  legislature,  even  in 
the  eighteenth  century,  to  ensure  that  the  power  of  arrest  should 
not  be  exercised  in  trifling  cases,"  that,  in  others,  the  plaintiff's 
cause  of  action  should  be  genuine,^  and  that  the  defendant  should 
really  understand  the  matter  of  the  claim  made  against  him.^ 
The  defendant  was  also,  ultimately,  allowed  to  pay  money  into 
Court  to  abide  the  trial  of  the  action,  instead  of  giving  bail.^ 
Nevertheless,  in  spite  of  these  mitigations,  the  oppressive  power 
of  arrest  on  mesne  process  went  on,  without  substantial  check, 
until  the  year  1838,  when  it  was  abolished  in  all  cases,^  except 
those  in  which  it  appears  that  the  defendant  is  about  to  leave  the 
country  to  avoid  meeting  the  claim  against  him.^  Meanwhile, 
however,  the  ancient  remedy  of  seizing  the  debtor's  body  in 
satisfaction  {Ca.  Sa.)  of  a  debt  actually  adjudged  to  be  due, 
remained  untouched ;  except  so  far  as  it  was  mitigated  by  al- 
ternative remedies  against  the  debtor's  property.  It  was  not 
until  the  year  1869,  that,  on  the  overhauling  of  the  Bankruptcy 
laws,  the  power  of  imprisonment  on  civil  process  was  entirely 
swept  away ;  except  in  cases  in  which  the  debtors  are  deemed 
to  have  been  *  fraudulent,'  ^  or  to  be  contemptuously  resisting  an 
order  to  pay  which  they  can,  if  they  choose,  obey.^ 

Again,  amid  the  thick  darkness  of  the  eighteenth  century, 
we  see  a  point  of  light  in  the  statute  of  the  year  1731,^°  which 
English  in  enacted  that  the  proceedings  in  all  Courts  in  England 
t  e  ourts  gJ^Q^l^  \yQ  conducted  in  English,  and  such  of  them  as 
were  written  should  be  written  in  ordinary  legible  hand,  and  not 
in  the  medieval  character  known  as  '  court  hand.'     Needless  to 

'  North  (ibid.,  par.  48)  says  that  his  brother  left  a  MS.  dealing  with  the  whole 
subject.     So  far  as  the  writer  knows,  it  has  not  been  published. 

2  12  Geo.  I  (172.5)  c.  29,  s.  1   (amended  by  19  Geo.  Ill  (1779)  c.  70). 

3  Ibid.,  s.  2.         ■•  5  Geo.  II  (1732)  c.  27,  s.  1.  '  43  Geo.  Ill  (1803)  c.  46,  s.  2. 
'  .Judgments  Act,  1838  (1  &  2  Vict.  c.  110)  s.  1.     This  section  was  re-enacted  by 

the  Debtors  Act,  1869,  s.  6.  '  Judgments  Act,  1838,  ss.  3,  4. 

» Debtors  Act,  1869  (32  &  33  Vict.  c.  62)  s.  4. 
'  S.  5.  (2).     The  'contempt'  is  too  often  fictitious. 
'"4  Geo.  II,  c.  26,  s.  1. 


MODERN   CIVIL   PROCEDURE  349 

say,  there  were  not  wanting  in  those  days  great  men  who  foresaw 
in  the  change  the  downfall  of  all  things,  including  the  legal 
profession  ;  and  who  brought  forward  the  quaintest  arguments  in 
opposition  to  the  proposal,  one  of  the  best  known  being  the 
contention,  that  the  absence  from  legal  documents  of  the  quaint 
barbarisms  of  the  neo-Latin  of  the  Year  Books,  would  injure  the 
study  of  classical  literature.  When  such  arguments  are  gravely 
put  forward,  one  can  hardly  help  indulging  in  an  equally  grave 
doubt,  whether  those  who  adopt  them  have  really  any  acquaint- 
ance, either  with  classical  literature  or  with  legal  forms. 

Once  again,  and  for  the  last  time,  we  note  in  our  survey  of 
legal  history,  the  almost  dead  blank  of  the  eighteenth  century 
Silence  of  ii^  the  history  of  civil  procedure.  Save  for  the  small 
the  Eight-      reforms  before  noticed,  the  statute-book  from  1710- 

eenth  _  '  _ 

Century  1S30  yields  scarcely  a  grain  of  harvest ;  while  the 
Rules  and  Orders  of  Court,  though  they  appear  with  some  regu- 
larity, are  confined  to  small  points  of  no  special  importance.  A 
Royal  Commission  to  examine  the  scandalous  abuses  of  the 
Court  of  Chancery  was  appointed  in  1826 ;  but,  as  it  was  pre- 
sided over  by  Lord  Eldon,  it  is  not,  perhaps,  surprising  that  it 
should  have  developed  into  something  like  an  apologia  for  that 
nest  of  hoary  abuses.  Not  until  the  year  1831  was  any  serious 
attempt  made  to  reform  the  Court  of  Chancery.  But  it  will, 
perhaps,  be  well  to  adhere  to  the  order  hitherto  followed,  and  deal 
first  with  the  important  changes  in  Common  Law  procedure 
which  took  place  in  the  years  1832-3.  During  those  two  years, 
four  important  statutes  dealing  with  the  procedure  of  the  Com- 
mon Law  Courts  were  passed,  and  must  receive  a  few  words  of 
notice. 

The  first  of  these,  the  Uniformity  of  Process  Act,  1832,^  was 
aimed  at  abolishing  a  very  grievous  scandal  which  had  grown 
Uniformity  up  from  historical  causes,  but  which  now  remained 
of  Process  ^^  ^  ^^^^  oppression  of  the  suitor,  and  a  source  of 
profit  to  the  unscrupulous  official  and  practitioner.  As  we  have 
seen,'  the  gradual  introduction  of  the  various  common  law  reme- 
dies, and  their  distribution  among  the  three  Common  Law  Courts, 
had  given  rise  to  great  differences  of  procedure.  Not  only  had 
each  action  its  appropriate  process ;  but,  where  the  action  might 

1  2  Will.  IV,  c.  39.  2  Ante,  pp.  169-174. 


350    A  SHORT  HISTORY  OF  ENGLISH  LAW 

be  commenced  in  more  than  one  court,  this  appropriate  process 
might  be  still  further  specialized  by  the  Rules  of  the  court  actu- 
ally chosen.  The  consequence  was,  that  the  way  of  the  litigant 
was  beset  with  various  traps ;  some  of  them  meaning  death  to 
his  action  if  he  fell  into  them,  others  merely  involving  him  in 
expense  to  recover  his  lost  ground.  At  one  time,  no  doubt,  these 
differences  had  all  had  meanings ;  but  these  meanings  had  long 
disappeared  and  been  forgotten,  with  the  result,  that  the  most 
successful  practitioner  in  the  Common  Law  Courts  was  not  the 
man  with  the  greatest  grasp  of  principle,  or  the  strongest  sense 
of  justice,  but  the  man  with  the  memory  for  irrelevant  details, 
and  the  least  scruple  in  making  use  of  them.  The  practical 
over-lapping  of  jurisdictions  of  these  courts,  which,  as  we  have 
also  seen,^  was  chiefly  brought  about  by  the  manipulation  of 
these  peculiarities  of  procedure,  made  it  all  the  greater  scandal 
that  the  conduct  of  a  Common  Law  action  should  resemble  an 
obscure  game  of  chance,  in  which  the  rules  were  determimed  by 
forgotten  authorities. 

The  Uniformity  of  Process  Act,  1832,^  then,  attempted  to 
provide  that,  with  a  few  necessary  exceptions,  every  Common 
Law  personal  action  should  follow,  mutatis  mutandis,  the  same 
steps,  at  least  in  all  its  initial  stages.  The  first  step  was  to  be 
a  simple  writ  of  summons  stating  briefly  the  nature  of  the  action, 
and  requiring  an  appearance  to  be  entered  by  the  defendant 
within  a  limited  time.  This  writ  was  to  be  served  personally  on 
the  defendant;^  but,  if  personal  service  could  not  be  effected, 
the  defendant  might  be  distrained  by  the  sheriff  to  compel  his 
appearance.'*  Then  came  a  momentous  change  from  the  old 
superstitious  rule  that  proceedings  could  not  continue  in  the 
defendant's  absence.  If  the  sheriff  returned  non  est  inventus  and 
nulla  bona  to  the  Distringas,  the  Court  might  allow  the  plaintiff 
to  enter  an  appearance  for  the  defendant,''  instead  of  resorting  to 
the  old  cumbrous  process  of  outlawry.  Thus,  the  result  of  the 
defendant's  contumacy  would  be,  that  judgment  would  be  given 
against  him  in  his  absence.  And  thus  the  process  of  civil  out- 
lawry became  reserved,  practically,  for  cases  on  which  the  plain- 
tiff was  entitled  to  proceed  to  arrest  the  defendant  for  failure  to 
appear;   and,  as  we  have  seen,®  these  cases  were  swept  away  by 

>  Ante,  pp.  169-174.  « 2  Will.  IV,  c.  39,  s.  1.  '  S.  3. 

*Ibid.  ''Ibid.  '^  Ante,  p.  348. 


MODERN   CIVIL  PROCEDURE  351 

the  Judgments  Act,  1838.^  The  Act  of  1832  made  special 
provision  ^  for  the  cases  of  defendants  really  (not  fictitiously) 
in  custody  in  the  Marshalsea  or  the  Fleet,  and  for  members  of 
Parliament  entitled  to  privilege  from  arrest  on  civil  process. 
Various  minor  regulations  connected  with  writs  were  added ; 
and,  as  we  have  seen,^  a  very  useful  Rule-making  power  was 
conferred  on  the  judges,  for  the  purpose  of  giving  effect  to  the 
Act.  It  should,  however,  be  carefully  noted,  that  the  statute 
makes  no  attempt  to  abohsh  '  forms  of  action  ' ;  i.e.  as  appears 
by  the  Schedule  of  forms  annexed  to  the  Act,  the  plaintiff  was 
still  bound  to  name  his  proper  writ,  and,  if  he  chose  the  wrong 
one,  he  was,  presumably,  non-suited  as  before. 

The  reform  begun  in  the  year  1832,  in  the  initiatory  proceed- 
ings at  common  law,  was  carried  much  further  with  regard  to 
^,.^y  the  later  stages  by  the  Civil  Procedure  Act  of  the 

Procedure  following  year.^  Beginning  ^  with  a  frank  recognition 
^ '  ^  ^^  of  the  fact  that  the  amendment  of  a  subtle  and  com- 
plicated piece  of  machinery,  like  the  'special  pleading'  system, 
could  not  be  undertaken  by  laymen,  the  legislature  empowers 
and  requires  the  Common  Law  judges,^  within  five  years  from  the 
passing  of  the  Act,  to  produce  a  set  of  Rules  and  Orders,  to  be 
approved  by  Parliament,  for  regulating  common  law  pleadings, 
especially  with  a  view  to  diminishing  delay,  formalities,  and  ex- 
pense. It  then  proceeds  to  abolish  a  number  of  surviving  pro- 
cedural anomahes,  such  as  'wager  of  law,'^  ' venue,' ^  and  close 
days,^  or  holidays,  on  which  no  procedural  steps  could  be  taken, 
to  some  of  which  reference  has  previously  been  made.  It  lays 
down  the  rule^*^  limiting  actions  on  sealed  contracts  (or  'special- 
ties ')  to  a  period  of  twenty  years,  penal  actions  to  two  years,  and 
several  other  kinds  of  claims  to  six  years  ^^  after  the  cause  of 
action  arises.  Finally,  various  procedural  difficulties,  which 
really  amounted  to  deprivation  of  rights,  were  specially  abolished. 
Thus,  the  rule  that  a  right  of  action  in  Tort  perished  with  the 

'  1  &  2  Vict.  c.  110,  s.  1.  (Civil  outlawry  was  formally  abolished  by  the  Civil 
Procedure  Acts  Repeal  Act,   1879,  s.  3.) 

2  Ss.  8,  9.  3  Ante,  pp.  189,  190.  ■«  3  &  4  Will.  IV,  c.  42. 

^S.  1.  6  Ibid.  'S.  13. 

*  S.  22.  Before  this  time,  'a  local'  action  (i.e.  an  action  relating  to  land)  could 
only  be  tried  in  the  county  where  the  land  was  situated. 

8  S.  43.  10  Ss.  3-5. 

'*  This  was  the  normal  time  fixed  for  personal  action  by  the  Limitation  Act,  1623 
(21  Jac.  I,  c.  16).     But  the  wording  of  that  statute  left  many  loop-holes. 


352    A  SHORT  HISTORY  OF  ENGLISH  LAW 

death  of  either  party,  was  partially  modified  by  the  sections 
allowing  executors  or  administrators  to  sue^  in  respect  of  recent 
damage  to  the  land  of  their  deceased,  and  to  be  sued  -  for  similar 
damage  done  by  their  deceased  or  on  simple  contracts  entered 
into  by  him.  Juries  were  allowed  to  award  interest,  in  addition 
to  the  principal  debt,  in  certain  cases ;  even  where  it  was  not 
specially  stipulated  for.^  The  personal  representatives  of  a 
lessor  were  empowered  to  distrain,  within  six  months  of  the  de- 
cease, for  arrears  falling  due  in  the  deceased's  lifetime.'* 

The  judges  of  the  Common  Law  Courts  made  some  use  of  the 
authority  conferred  on  them  by  the  Civil  Procedure  Act,  1833 ; 
and,  in  the  year  1834,  produced  a  set  of  General  Rules  and  Orders 
for  the  conduct  of  pleadings  in  the  superior  Courts  of  Common 
Law.^  They  contain  some  reports  of  importance,  of  too  tech- 
nical a  nature  to  be  dealt  with  here.  But  they  probably  failed 
to  satisfy  the  ardent  hopes  of  the  reformers  who  framed  the  Act 
of  1833  ;  and  it  is  with  some  suspicion  that  we  read,  in  the  pref- 
ace to  Mr.  Joseph  Chitty's  edition  of  the  following  year,  the 
triumphant  claim,  that  the  new  Rules  have  'not  occasioned  any 
material  alteration  either  in  the  principles  or  the  forms  of  plead- 
ing.'^ A  somewhat  more  drastic  method  of  reform,  though,  as 
the  author  of  the  book  just  referred  to  suggests,  it  might  have 
been  'annoying  to  an  aged  author,'^  would  have  been  welcome 
in  the  interests  of  justice. 

The  other  two  statutes  referred  to  are  mainly  concerned  with 
a  matter  which  is  alwaj's  of  first-rate  importance  in  legal  pro- 
cedure, and  which  has  a  direct  effect  on  substantive  law,  viz. 
restriction  on  the  pursuit  of  ancient  claims.  We  have  seen 
already,  in  this  chapter,^  how  the  subject  had  been  touched  by  the 
Civil  Procedure  Act,  1833 ;  but  the  provisions  of  the  Real 
Property  Limitation  Act,  1833,  and  the  Prescription  Act,  1832, 
were  found  more  sweeping.  We  take  the  former  first,  as  dealing 
with  more  familiar  topics. 

Theoretically,  by  far  the  most  important  clause  of  the  Real 
Property  Limitation  Act,  1833,  is  that  which  abolishes,^  at  one 

>S.  2. 

2  S.  14.  This  was  the  last  surviving  shred  of  the  'tortious'  character  of  Assump- 
sit.    As  we  have  seen  {ante,  p.  140)  it  had  really  been  abolished  by  judicial  decision. 

'Ss.  28,  29.  «Ss.  37,  38. 

'  Given  in  the  Appendix  to  A  Concise  View  .  .  .  of  Pleadings  (2d  ed.  1835), 
by  Joseph  Chittv,  pp.  39-58. 

«  P.  iii  '  Ibid.  » Ante,  p.  351.  »  3  «t  4  Will.  IV,  c.  27,  s.  36. 


MODERN   CIVIL   PROCEDURE  353 

fell  swoop,  almost  the  whole ^  of  the  'real'  and  'mixed'  actions 
to  recover  land,  which  once  were  the  pride  and  boast  of  English 
Abolition  lawyers.  In  fact,  these  actions  had  almost  entirely 
of  Real '       disappeared,  long  before   1833;^    and  when,  in  the 

Actions  , 

period  of  grace  allowed  for  the  taking  effect  of  the 
Act,  an  attempt  was  made  to  revive  them,  the  most  eminent 
practitioners  displayed  the  grossest  ignorance,  even  of  the  com- 
mon terminology  of  the  subject.  Their  true  connection  with  the 
main  purport  of  the  statute  was,  that  the  period  within  which 
they  could  be  brought  had  been  limited  by  all  sorts  of  conditions, 
not  necessarily  effluxion  of  time  ;^  while  their  disappearance  left 
the  more  modern  procedure  by  Ejectment  or  Chancery  action 
without  fixed  limits  of  time.  It  is  true,  that  the  statute  of  1623,* 
formerly  referred  to,  had  prohibited  any  entry  upon  land  after 
twenty  years  from  the  time  at  which  the  right  accrued ;  but,  as 
the  entry  in  Ejectment  was  purely  fictitious,  it  could  easily 
be  dated  as  at  any  time. 

The  main  purport  of  the  Real  Property  Limitation  Act, 
1833,  is  to  be  found  in  the  second  section,  which  provides  that 
New  Time  ^^  person  shall  make  an  entry  or  distress,  or  bring 
Limit  an  action,  or  suit  in  Equity,^  to  recover  any  land  or 

rent,  after  twenty  years  have  elapsed  since  his  right  to  do  so 
first  accrued.  Various  special  provisions  are  added  for  special 
cases ;  as  where  the  claimant  is  under  disability,^  or  his  interest 
is  by  way  of  remainder  or  reversion,'^  right,  and  to  meet  the 
difficulty  occasioned  by'  tenancies  of  uncertain  duration.^ 
Even  for  cases  of  disability,  however,  the  extreme  limit  is 
forty  years  from  the  accrual  of  the  right  to  bring  an 
action ;  ^  except  that  patrons  or  incumbents  of  ecclesiastical 
benefices  are  to  have  two  incumbencies,^"  or  sixty  years,  and 
that  advowsons  can  be  recovered  at  any  time  within  three 
incumbencies  or  sixty  years. ^^     Two  points  should,  however,  be 

1  The  exceptions  are  the  Writs  of  Right  of  Dower,  Dower  unde  nihil  habet, 
Quare  Impedit,   and   Ejectment. 

2  They  had  been,  of  course,  superseded  by  the  action  of  Ejectment  (ante,  pp. 
173-177). 

5  The  most  general  enactments  on  the  subject  appear  to  have  been  the  32  Hen. 
VIII  (1540)  c.  2,  and  the  1  Mary,  st.  II  (1553)  c.  5.  These  statutes  generally  fixed 
a  limit  of  sixty  years. 

*  21  Jac.  I,  c.  16,  s.  1  (3).  ^  S.  24. 

« S.  16.  If  the  period  has  once  commenced  to  run,  a  supervening  disability 
will  not  suspend  it.  '  S.  3.  »  Ss.  7,  8.  »  S.   17. 

10  S.  29.  "  S.  36.     (There  is  an  extreme  limit  of  100  years.) 


354    A  SHORT  HISTORY   OF  ENGLISH  LAW 

carefully  noted  on  the  Act.  The  first  is,  that  '  rent,'  in  the 
main  section,^  does  not  include  the  most  common  rent  of  all, 
viz.  rent-service  ;  it  being  the  steady  doctrine  of  the  Courts  that 
no  failure  to  enforce  his  rights  can  bar  the  right  of  a  landlord 
during  the  continuance  of  a  term,  or  cause  the  statute  to  run 
against  him  till  its  expiry.-  The  second  is,  that  though,  logically, 
the  Act  is  purely  procedural,  yet,  in  fact,  adverse  possession  of 
land  for  twenty  years  will,  save  in  exceptional  cases,  confer  a 
positive  title  on  the  possessor.  This  result  is  due  to  section  34 
of  the  Act,  which  provides  that,  with  the  expiry  of  the  period 
during  which  he  has  the  right  to  bring  an  action,  the  title  itself 
of  the  claimaint  shall  be  extinguished.  For,  if  the  former 
owner  may  not  disturb  the  possessor,  the  latter  is,  to  all  in- 
tents and  purposes,  owner ;  even  though  the  Court  may  hesi- 
tate to  force  his  title  on  an  unwilling  purchaser.  It  should  be 
remembered,  however,  that,  by  a  well-known  decision  of  the 
Judicial  Committee,  though  an  adverse  possessor  may  hand  on 
his  possession,  even  before  maturity,  by  assignment,  devise,  or 
inheritance,^  yet,  if  he  abandons  his  possession,  the  right  of 
the  true  owner,  and,  consequently,  the  period  of  limitation, 
begins  de  novo.^ 

The  period  of  limitation  laid  down  by  the  Act  of  1833  has 
been  further  cut  down  by  the  amending  Act  of  1874  °  from 
twenty  years  to  twelve ;  but  the  general  scheme  of  the  Act  of 
1833  remains  untouched.^ 

The  Prescription  x\ct,  1832,  is  concerned  with  those  '  incor- 
poreal hereditaments,'  "^  which,  not  being  susceptible  of  posses- 
sion, cannot  be  acquired  by  entry.  For  the  benefit  of 
persons  who  had  de  facto  exercised  such  rights 
without  formal  evidence  of  title,  the  common  law  had  in- 
vented the  doctrine  of  '  immemorial  user,'  i.e.  it  allowed  such  a 
claim  to  be  raised  either  by  a  plaintiff  or  a  defendant,  by  an 

>s.  2. 

2  Archhold  v.  Scully  (1861)  9  H.  L.  C,  at  p.  375,  per  Lord  Cranworth ;  Walter  v. 
Yalden  [1902]  2  K.B.  304.  (Of  course,  s.  42  limits  recovery  of  arrears  of  rent- 
service.) 

3  Asher  v.  Whitlock  (1865)  L.R.  1  Q.B.  1  ;    Perry  v.  Clissold  [1907]  A.C.  73. 
"  Trustees  and  Executors  Co.  v.  Short  (1888)  L.R.  13  App.  Ca.  793. 

'  37  &  .38  Vict.  c.  57. 

*  A  rather  important  recent  amendment  of  s.  25  is  s.  8  of  the  Trustee  Act,  1888 
(51  &  52  Viet.  c.  59),  which  allows  even  trustees  to  plead  the  Statutes  of  Limitation 
in  certain  cases. 

^  Ante,  pp.  92-95. 


MODERN   CIVIL   PROCEDURE  355 

allegation  that  the  plaintiff  (or  defendant)  and  his  ancestors,  or 
'  those  whose  estate  he  hath,  had  openly,  peaceably,  and  of 
right,'  exercised  the  right  claimed  '  from  the  time  whereof 
the  memory  of  man  runneth  not  to  the  contrary.'  But,, 
inasmuch  as,  by  the  common  law,  such  an  allegation 
meant,  strictly,  a  claim  of  continuous  user  since  1189,^ 
and  as  it  became  manifestly  impossible  to  bring  actual 
evidence  of  such  user  the  Courts  used  to  allow  a  proof 
of  user  for  twenty  years  to  raise  a  presumption  of  title. 
This  presumption  was,  at  different  periods,  put  in  differ- 
ent forms ;  either  as  that  of  immemorial  user,  or  that  of  a 
'  lost  grant.'  But,  in  the  former  case,  it  was  liable  to  be  defeated 
by  equally  artificial  evidence,  e.g.  that,  at  some  period  after 
1189,  but  more  than  twenty  years  before  the  action,  the  dom- 
inant and  servient  tenements  had  been  vested  in  one  person, 
who  could  not,  of  course,  exercise  a  true  servitude  over  his  own 
land,  while  juries  sometimes  shrank  from  declaring,  on  oath,  the 
existence  of  a  grant  which  they  knew  did  not,  in  fact,  exist. 
It  was  to  remedy  these  defects,  and  not  to  do  away  with  com- 
mon law  prescription,  that  the  Prescription  Act  of  1832  -  was 
passed.  Like  another  Act  associated  with  the  name  of  Lord 
Tenterden,^  it  is  not  free  from  verbal  inaccuracies ;  but  its  general 
scheme  is  simple.  It  does  not  affect  tithes,  rents,  or  services,^ 
nor  (it  is  believed)  franchises  or  customary  rights.^  Advowsons, 
too,  as  we  have  seen,^  fall  under  the  Real  Property  Limitation 
Acts,  and  not  under  the  Prescription  Act.  With  these  exceptions, 
however,  the  Prescription  Act  deals  with  easements  and  profits 
under  three  heads,  and  provides  that  proof  of  continuous  user 
for  certain  periods,  in  the  course  of  legal  proceedings,  shall  have 
certain  definite  legal  consequences.  Proof  of  the  enjoyment  of 
the  access  of  light  to  a  building  for  twenty  years,  gives  the  claim- 
ant an  absolute  title  to  the  light  as  against  all  persons  but 
the  Crown ;  unless  the  objector  can  prove  that  the  claimant 
enjoyed  it  by  virtue  of  a  written  agreement.^     Similar  proof  as 

1  The  date  of  the  accession  of  Richard  I,  taken  as  the  'comniencement  of  legal 
memory.'  2  2  &  3  Will.  IV,  c.  71. 

3  Statute  of  Frauds  Amendment  Act,  1828  (9  Geo.  IV,  c.  14).  *  S.  1. 

*  Franchises  are  not  mentioned.  It  is  a  little  doubtful  whether  customary  rights 
are  included  (Mercer  v.  Denne  [1905]  2  Ch.  at  p.  586). 

^  Ante,   pp.   353-355. 

^  S.  3.  (Presumably  a  written  agreement  consistent  with  the  claim  would  not 
invalidate  it.) 


356    A  SHORT  HISTORY  OF  ENGLISH  LAW 

to  any  other  easement,  raises  a  presumption  of  title  which  cannot 
be  defeated  merely  by  showing  a  commencement  at  some  prior 
period  since  the  commencement  of  legal  memory,  though  it  may 
be  defeated  in  any  other  way.^  Proof  of  similar  enjoyment  of 
such  a  right  for  forty  years,  will  confer  a  title  as  against  all 
persons  (including  the  Crown) ;  unless  there  is  a  written  agree- 
ment against  it.-  As  regards  profits  a  inendre,  these  stand  on 
the  same  footing  as  easements  other  than  lights ;  except  that  the 
respective  periods  of  enjoyment  are  thirty  and  sixty  years.^ 
The  recent  decision  of  the  House  of  Lords  in  Home  and  Colonial 
Stores  V.  Colls, '^  has  cut  down  the  'enjoyment'  of  light  claimable 
under  the  statute  to  the  amount  necessary  for  reasonable  con- 
venience ;  though  this  conclusion  is  exactly  contrary  to  the 
words  of  the  section.  The  Act  can  only  be  relied  upon  in  sup- 
port of  enjoyment  continued  until  within  one  year^  'immediately 
prior  to  the  commencement  of  the  suit  or  action  in  which  it  is 
questioned ' ;  enjoyment  without  litigation,  therefore,  confers  no 
title  under  the  Act.  For  this,  and  other  reasons  stated,  'common 
law  prescription '  is  by  no  means  extinct ;  and  is,  in  fact,  not 
infrequently  resorted  to.^  Apparently,  however,  the  Act  of 
1832  has  abolished  the  necessity  for  suing  in  the  name  of  the 
owner  of  the  fee,  in  all  cases. ^ 

In  the  year  1830,  the  very  modest  result  of  the  Chancery  Com- 
mission of  1826,  appeared  in  the  shape  of  an  Act  to  deal  with 
Chancery  Commitments  for  contempt  in  not  answering  bills  in 
Reform  Equity.^     The  Court  of  Chancery  had  had  the  same 

difficulty  with  contumacious  defendants  as  the  Courts  of  Common 
Law;  and,  though  it  had  dealt  with  them  in  a  somewhat  more 
effective  way  than  by  the  clumsy  process  of  outlawry,  it  had 
manifested  the  same  tenderness,  amounting  almost  to  timidity, 
in  dealing  with  absentees.  The  elaborate  provisions  of  the 
Contempt  of  Court  Act,  1830,  seem  really  to  amount  mainly  to 
this :  that  if  the  Court  is  quite  satisfied  that  the  defendant  has 
either  been  served  with  the  subpoena,  or  is  deliberately  evading 


'  S.  2.  2  Ibid.  3  S.  1. 

*  [1904]  A.C.  179.  The  foundation  of  the  action  is  declared  to  be  Nuisance, 
not  diminution  of  actual  enjoyment. 

'8.  4.     (Interruption  for  lesH  than  a  year  does  not  count.) 

«  E.g.  Hyman  v.  Van  den  Beryh  [1908]  1  Ch.  167;  Hulhcrt  v.  Dale  (1909)  78  L.J. 
Ch.  4.57 ;    Whitmores  v.  Stanford  [1909]  1  Ch.  427. 

'  S.  5.  8  11  Geo.  IV  &  1  Will.  IV,  c.  36. 


MODERN   CIVIL   PROCEDURE  357 

service,  and  is  not  labouring  under  any  of  the  usual  disabilities, 
he  may  be  proceeded  against  in  his  absence.^  There  are  also 
elaborate  rules  for  making  the  process  of  the  Court  effectual ;  ^ 
and  the  time  for  petitioning  for  a  rehearing  of  a  cause  is  limited 
to  six  months.^  But  nowhere  in  this  Act,  nor  in  the  Act  of 
twelve  years  later,^  whereby,  after  the  transfer  to  the  Court  of 
Chancery  of  the  equity  jurisdiction  of  the  Exchequer,^  certain 
minor  changes  in  the  Chancery  offices  were  made,  is  there  any 
evidence  of  a  strong  reforming  hand.  In  fact,  a  good  deal 
of  these  last  two  statutes  is  taken  up  with  providing  liberal 
compensation  for  the  few  dispossessed  officials,  and  with  creating 
new  offices. 

The  real  period  of  reform  in  the  superior  Courts  does  not 
begin  until  the  year  1850,  when,  as  the  result  of  two  Royal 
Commissions,  serious  steps  were  taken  to  amend  the  procedure  of 
the  higher  tribunals.  From  that  year  onwards,  we  notice  two 
converging  streams  of  statutes,  having  for  their  objects,  not 
merely  the  improvement,  on  existing  lines,  of  the  procedure  of 
the  respective  Courts,  but  the  breaking  down  of  what  was,  both 
theoretically  and  practically,  the  greatest  blot  on  the  system  of 
English  civil  procedure,  viz.  the  conflict  of,  or,  at  least,  the  separa- 
tion between,  Law  and  Equity.  We  have  seen  how  this  conflict 
arose,^  and  how,  after  some  centuries  of  cautious  preparation  for 
hostilities.  Equity  won  a  decisive  victory  at  the  commencement 
of  the  seventeenth  century.^  After  the  latter  event,  there  was  no 
substantial  doubt  that,  if  the  Court  of  Chancery  determined  to 
alter  a  rule  of  law,  it  would  succeed  in  doing  so.  But  the  manner 
of  doing  it  might  be  grievously  slow,  and  intolerably  costly  to 
the  suitor. 

Broadly  speaking.  Equity  jurisdiction  fell  under  three  heads. 
Under  the  first,  it  was  'exclusive,'  i.e.  Chancery  (or  the  Ex- 
chequer on  its  Equity  side)  dealt  with  the  matter  from  beginning 
'Exclusive'  ^o  end.  This  was  the  least  vexatious,  though  not, 
Equity  perhaps,  the  least  costly  form  of  equity.     It  covered 

such  cases  as  trusts  and  (after  the  close  of  the  seventeenth  cen- 
tury) the  administration  of  the  estates  of  deceased  persons. 
Under  the  second  head.  Equity's  jurisdiction  was  '  concurrent,' 
i.e.  the  suitor  could  get  one  class  of  remedies  in  Equity,  and  an- 

iS.  3.  2S.  15.  'S.  6.  <5  «&  6  Vict.  (1842)  c.  103. 

*5  Vict.  (1841)  c.  5  «  Ante,  pp.  80,  163-166.  ^  Ante,  pp.  165,  166.     , 


358     A   SHORT  HISTORY   OF   ENGLISH   LAW 

other  at  Common  Law ;  but  not  both  from  either.  He  had, 
therefore,  to  bring  two  processes,  if  he  wished  to  obtain  all  his 
'Concurrent'  remedies.  Or,  again,  it  might  be  that  a  defendant, 
Equity  sued  at  law,  would  rely  on  a  defence  only  available  in 

Equity.  It  would  be  necessary  for  him  to  file  a  separate  bill  in 
Chancery,  to  restrain  the  proceedings  at  Common  Law.  Obvi- 
ous examples  would  be  in  a  case  of  contract ;  in  which  the  plain- 
tiff sought  both  damages  (the  common  law  remedy)  and  a  decree 
of  specific  performance  (the  remedy  of  Equity) ;  or  in  which  a 
defendant,  sued  at  law,  wished  to  set  up  the  equitable  defence 
of  'undue  influence.'  Finally,  under  the  third  head,  Equity 
jurisdiction  was  '  auxiliary,'  to  that  of  Common  Law ;  as  where 
'  Auxiliary '  ^  plaintiff,  unable  to  secure  the  right  to  inspect  his 
Equity  opponent's  documents  in  a  common  law  action,  filed 

a  supplementary  '  bill  of  discovery  '  in  Equity.  This  was,  of 
course,  a  dilatory  and  costly  process. 

Thus  the  two  streams  of  legislation  to  which  reference  has  been 
made  had  for  their  secondary  objects  (a)  the  bestowal  of  equi- 
table powers  on  the  Common  Law  Courts,  (/;)  the  bestowal  of 
common  law  powers  on  the  Court  of  Chancery ;  in  order  to 
prevent  the  waste  and  delay  caused  by  the  necessity  of  recurring 
to  rival  jurisdictions.  The  former  stream  is  represented  by  the 
Common  Law  Procedure  Acts  of  1852,  1854,  and  1860;  the 
latter  by  the  Chancery  Amendment  Acts  of  1852  and  1858. 
Probably  the  successful  establishment  of  the  County  Court  sys- 
tem, with  its  cheap  and  rapid  procedure,  in  the  year  1840,^  had 
something  to  do  with  the  progress  of  the  transformation. 

The  Common  Law  Procedure  Act,  1852,-  is  an  enormously 
long  statute ;  and  only  one  or  two  of  its  leading  provisions  can 
be  alluded  to.  But  these  will  serve  to  show  that  the  spirit 
of  reform  had  got  to  work  at  last.  The  danger  of  being  de- 
Common  f eated  by  the  choice  of  a  wrong  '  form  of  action '  was 
Procedure  definitely  abolished  by  the  clause^  which  provides, 
^^^^  that  all  personal  actions  shall  be  commenced  by  a 

simple  writ  of  summons,  in  common  form,  making  no  mention 
in  the  body  of  it  of  any  particular  cause  of  action.'*  But,  further, 
where  the  claim  is  for  a  mere  debt  or  'liquidated'  sum  of  money, 
the  plaintiff,  by  endorsing  'special'  ])articulars  of    his    claim, 

•  9  &  10  Vict.  c.  95.  *  15  &  16  Vict.  c.  7C. 

'  S.  2.  *  See  form  lu  ached.  A. 


MODERN   CIVIL   PROCEDURE  359 

may  save  himself  the  costs  of  formal  pleadings,  by  dispensing 
with  further  particulars  of  demand ;  and  may,  in  the  event  of 
the  defendant  not  appearing,  obtain  summary  judgment  for 
the  amount  of  his  claim. ^  The  power  of  amendment,  all  through 
the  proceedings,  is  to  be  almost  unlimited;^  and  all  kinds  of 
venerable  technical  rules,  as  to  joinder  of  parties  and  claims,^ 
'abatement'  of  writs,^  fictitious  averments  in  pleadings,  formal 
production  of  documents  (e.g.  ' projert'  and  'oyer'  of  bonds) ,^ 
'express  colour,'®  form  of  pleadings  in  Contract  and  Tort  respec- 
tively,^ pleading  of  inconsistent  pleas,^  and  including  several 
matters  in  one  plea,^  are  abolished.  With  a  view  to  saving 
of  expense,  many  unnecessary  forms,  such  as  the  'rule  to 
plead,'  ^°  and  the  elaborate  steps  taken  to  get  together  a  jury,^^ 
are  declared  unnecessary,  and  forbidden.  The  time  for  appealing 
by  way  of  '  error  apparent  on  the  record '  is  reduced  to  six  years.^^ 
The  action  of  Ejectment,  which,  as  will  be  remembered, ^^  es- 
caped the  abolition  of  the  'real'  actions  in  1S33,  is  simplified; 
only  such  differences  from  the  ordinary  personal  action  being 
allowed  as  are  rendered  necessary  by  the  fact  that  the  proceedings 
'savour  of  the  realty.'  Finally,  with  a  view  to  rendering  more 
effectual  injunctions  and  orders  to  stay  proceedings,  it  is  pro- 
vided ^^  that  the  tribunal  in  which  the  proceedings  sought  to  be 
stopped  are  pending,  shall  take  direct  notice  of  the  injunction 
or  order,  by  staying  all  further  proceedings ;  instead  of  keeping 
up  the  fiction  that  the  injunction  or  order  is  addressed  merely 
to  the  plaintift*  and  not  to  the  court  itself. 

Contemporaneously  with  the  Common  Law  Procedure  Act, 
1852,  was  passed  another  statute  almost  equally  important.  So 
long  as  the  Common  Law  officials  were  numerous,  and  paid  by 
fees,  it  was  hopeless  to  expect  that  statutes  having  for  their  ob- 
ject the  simplification  and  cheapening  of  Common  Law  procedure 
would  have  a  fair  field.  Accordingly,  by  the  Common  Law 
Courts  Act,  1852,^^  the  whole  staffs  of  the  King's  Bench,  Common 
Pleas,  and  Exchequer  were  reorganized.  Useless  and  hereditary 
oflSces,  such  as  those  of  the  Marshals  of  the  Court,^®  the  Chief 
Proclamator  of  the  Common  Pleas,  and  the  Usher  of  the  Ex- 


»  Ss.  34-41.  *  Ss.  38-39. 

T  s.  74.  '■  8  S.  80. 

"S3.  104-113.  »*S.  146. 

"  15  &  16  Vict.  c.  73.  "  S.  1. 


1  Ss.  25,  27. 

«  S.  36. 

5  S.  55. 

«  S.  64. 

»  S.  81. 

"Ss.  62,  82, 

^^  Ante,  p.  353,  n.  1. 

"  S.  226. 

360    A  SHORT  HISTORY  OF  ENGLISH  LAW 

chequer/  with  the  patronage  attaching  to  them,-  were  aboHshed^ 
and  their  nominal  duties  transferred  to  working  officials.^  The 
performance  of  duties  by  deputy,''  except  in  cases  of  actual  dis- 
ablement,^ was  forbidden.  Payment  by  fees  was  suppressed ; 
and  fixed  salaries  substituted  for  the  officials  retained.^  Finally, 
the  bad  habit,  which  had  clung  like  a  pestilence  to  the  adminis- 
tration of  justice  for  centuries,  whereby  officials  of  the  courts 
acted  as  the  private  advisers  of  litigants,  was  entirely  forbidden  ;  ^ 
this  time,  at  last,  with  success.  Perhaps  the  best  testimony  to 
the  effectiveness  of  the  reforms  of  1852  is  the  fact,  that  men  of  a 
slightly  later  generation,  familiar  with  the  working  of  the  courts 
half  a  century  after,  find  it  difficult  to  believe  that  such  abuses  as 
are  plainly  described  by  the  legislation  of  that  year,  should 
really  have  existed  in  the  middle  of  the  nineteenth  century. 

Considerable  further  progress  in  the  reform  of  common  law 
procedure  was  made  by  the  long  Common  Law  Procedure  Act, 
1854  ;^  especially  in  facilitating  the  conduct  of  arbitrations  under 
the  supervision  of  the  Court,^  and  the  drawing  up  of  agreed 
statements  of  fact  ('special  cases')  bj^  the  parties  or  by  an 
inferior  tribunal,  for  the  opinion  of  the  superior  Court  on  the 
questions  of  law  involved.^°  But  the  great  merit  of  the  Act  of 
1854  is,  that  it  makes  a  decided  advance  in  the  direction  pre- 
viously described,  of  drawing  together  the  jurisdictions  in  Law 
and  Equity.  It  will  be  recollected  that,  by  Lord  Brougham's 
Act  of  1851,^^  the  parties  to  an  action  had  recently  been  rendered 
competent  and  compellable  witnesses,  with  certain  exceptions. 
The  new  statute,  accordingly,  virtually  introduces  ^^  the  machinery 
of  'discovery'  and  'interrogatories'  into  Common  Law  pro- 
cedure, and  thus  renders  the  filing  of  a  '  bill  of  discovery  '  in 
Equity  unnecessary.  The  old  and  rather  cumbrous  remedy  by 
Mandamus,  or  positive  order  for  the  fulfilment  of  a  quasi-public 
duty,  is  extended  to  ordinary  private  liabilities  ;^''  and  the  historic 
unwillingness  of  the  Common  Law  courts  to  order  specific  de- 
livery up  of  a  chattel  claimed  by  the  plaintiff,  instead  of  merely 
awarding  damages,  is  at  last  swept  away.'^  The  power  of  the 
Common  Law  courts  to  issue  prohibitory  injunctions  at  any 

'  S.  22.  s  S.  23.  3  S.  32.  "  S.  30.  ^  s.  6.  «  Ss.  12,  21. 

'S.  11.  ?  17  &   18  Vict.  c.   125.  '  Rs.  3-17.  i»  Ss.  4,  5. 

"  14  &  15  Vict.  c.  99,  s.  2.  •'  .'^s.  46-55. 

"  Ss.  68-73.     (This  reform  has  not  been  particularly  successful.) 
"  S.  78. 


MODERN   CIVIL  PROCEDURE  361 

stage  of  the  proceedings  is  declared  in  the  most  general  terms ;  * 
and,  perhaps  most  important  of  all,  the  defendant  is  empowered, 
subject  to  the  discretion  of  the  Court,  to  plead,  in  a  Common  Law- 
action,  any  defence  which  he  might  have  set  up  in  a  Court  of 
Equity.-  Thus,  instead  of  having  to  resort  to  a  separate  suit 
in  Equity  to  restrain  the  Common  Law^  action,  the  defendant  in 
that  action  gets  a  decision  of  the  point,  at  much  less  expense,  in 
the  original  proceedings. 

The  Common  Law  Procedure  Acts  of  1852  and  1854  were 
carried  still  further  by  the  Common  Law  Procedure  Act,  i86o;^ 
the  two  most  noteworthy  provisions  of  which  were,  that  which 
extended  to  the  Common  Law  courts  the  powers  long  enjoyed 
by  Equity  of  giving  relief  against  forfeiture  of  leases  owing  to  non- 
payment of  rent  or  insurance  premiums,"*  and  that  which  abolished 
the  few  remaining  '  real  actions  '  of  Right  of  Dower,  Dower 
uncle  nihil  habet,  and  Quare  impedit,^  and  substituted  for  them 
ordinary  personal  actions  commenced  by  Writ  of  Summons. 
But  it  is  time  that  we  turn  now  to  the  contemporary  reforms  in 
Chancery  procedure. 

The  first  of  these  required  the  passing  of  no  less  than  four 
statutes  in  the  year  1852.  By  the  Court  of  Chancery  Act,^  the 
Ch  c  r  venerable  office  of  *  Master  in  Ordinary  '  was  sw^pt 
Amendment  away,^  and  provision  made  for  the  speedy  winding 
up  of  causes  which  hiad  long  slept  in  the  security  of 
the  Masters'  chambers.^  ]Most  of  the  more  important  duties 
which  had  hitherto  fallen  to  the  disestablished  officials  were  to 
be  performed  by  the  Chancery  judges  ^  themselves,  sitting  in  the 
privacy  of  '  chambers ' ;  ^^  and  the  rest  by  '  chief '  and  sub- 
ordinate clerks  attached  to  each  of  the  Chancery  Courts.  To  the 
layman,  it  might  seem  that  this  great  change  merely  amounted 
to  the  substitution  of  a  Chief  Clerk  for  a  Master.  Li  reality,  it 
meant  the  entire  abolition  of  a  subordinate  but  semi-independent 
jurisdiction;  for  the  Chief  Clerks,^^  though  they  perform  rc- 

I  Ss.  79-82.  2  S.  83.  '  23  &  24  Vict.  c.  126.  "  Ss.  1,  2. 

5  S.  26.  (The  action  of  Quare  impedit  was  brought  to  try  the  right  to  present  to 
a  vacant  ecclesiastical  benefice.) 

M5  &  16  Vict.  c.  80.  "  S.  1.  «  Ss.  8,  10. 

'  These  had  been  recently  increased  to  five,  by  the  appointment  of  two  additional 
Vice-Chancexlors.  '"  Ps.  11-15. 

"  The  ancient  style  of  'Master'  has,  in  quite  modern  days  (22nd  February.  1S97) 
been  restored  to  these  officials.  But  the  ancient  powers  of  the  Masters  have  not 
been  revived.     The  title  was,  apparently,  restored  by  mere  administrative  direction; 


362    A  SHORT  HISTORY  OF  ENGLISH   LAW 

sponsible  duties,  requiring  the  exercise  of  great  technical  skill, 
are,  avowedly,  only  the  judges'  deputies,  and  will  readily  give 
any  party  desiring  it  an  opportunity  of  taking  the  judges'  opinion 
on  any  point,  however  trifling.  Even  the  expert  opinion  of  a 
new  class  of  Chancery  officials,  the  Conveyancing  Counsel  of 
the  Court,  may  be  questioned  by  suitors,  and  referred  to  the 
Court  itself.^  Though  the  conduct  of  business  under  the  new 
system  is  not  made  the  subject  of  detailed  enactment  in  the 
statute,  the  latter  contains  a  section  ^  requiring  the  Chancellor, 
with  the  advice  of  two  of  the  other  Chancery  judges,  to  make 
General  Rules  and  Orders  for  the  conduct  of  'chamber'  business; 
and  this  enactment  was  carried  into  effect  on  the  16th  October, 
1852.3 

Meanwhile,  however,  the  practice  of  the  Court  had  been 
made  the  subject  of  a  long  statute,  the  Chancery  Amendment 
Act,  1852.^  Its  provisions  are  too  technical  to  be  set  out  here. 
The  most  important  changes  made  by  the  Act  are  the  substitu- 
tion of  simple  service  of  a  copy  of  the  bill,  or  initiatory  complaint, 
for  the  elaborate  machinery  of  'subpoena'  and  'claim'  which 
had  grown  up  around  it,^  the  abolition  of  the  formal  process  of 
'obtaining  leave'  to  answer  a  bill,^  the  power  given  to  the  plain- 
tiff to  move  for  a  summary  decree  on  facts  admitted  or  not  denied 
by  the  defendant,^  and  the  corresponding  power  given  to  the 
defendant  to  apply  to  dismiss  a  bill  not  duly  prosecuted,^  the 
introduction  of  oral  testimony  at  the  request  of  any  party,  in 
place  of  the  purely  written  interrogatories  and  depositions 
hitherto  used  by  the  Court,^  the  cutting  down  of  objections  for 
*  want  of  parties,'  ^^  the  power  conferred  on  the  Court,  in  a  fore- 
closure action,  to  order  a  sale  of  the  mortgaged  property  instead 
of  a  foreclosure,^^  and  generally,  to  order  a  sale  of  any  real  estate 
the  subject  of  a  suit,^^  and,  finally,  the  abolition  of  the  necessity 
for  sending  a  case  for  the  opinion  of  a  Common  Law  court,  on  a 
point  of  common  law  which  has  arisen  incidentally  in  the  suit.^^ 

and,  presumably,  it  will  have  no  effect  on  the  statutory  qualifications  for  the  office 
of  MasLer  of  the  Supreme  Court,  formerly  attached  exclusively  to  the  Queen's 
Bench  Division.  i  Ss.  40-41.  2  g.  3^. 

'Order  entitled  'Proceedings  at  Judges'  Chambers.'  M5  &  16  Vict.  c.  86. 

'  Ss.  2-5.  6  s.  1.3.  7  S.  15.  «  S.  27. 

'  S.  30.  (But  the  evidence  is  to  be  taken  by  'examiners,'  not  at  the  actual 
hearing  of  the  cause.)  »o  S.  42.  "  S.  48.  ^^  S.  55. 

'^  S.  61.  (This  provision  was  strengthened  and  made  compulsory  by  a  statute 
of  the  year  1862.) 


MODERN   CIVIL   PROCEDURE  363 

The  Chancery  reform  legislation  of  1852,  comprised  'also 
the  Suitors'  Funds  Act/  containing  elaborate  rules  for  the 
administration  of  the  vast  funds  under  the  control  of  the  Court, 
and  abolishing  a  host  of  offices  with  weird  titles  ;  and,  in  the  year 
following,  the  legislation  of  1852  was  supplemented  by  three 
additional  statutes,^  only  one  of  which,  that  which  substituted 
ordinary  Commissioners  for  Oaths  for  the  old  Masters  Extraordi- 
nary in  Chancery,  is  worthy  of  special  reference.  But  the  Chan- 
cery Amendment  Act,  1858,^  made  an  important  change  in  the 
direction  of  'fusion'  by  empowering  the  Court  of  Chancery^  to 
award  damages  in  any  case  of  contract  or  tort  in  which  it  had 
power  to  give  an  equitable  remedy  by  way  of  injunction  or 
decree  of  specific  performance,''  and  either  in  substitution  for,  or 
in  addition  to,  those  equitable  remedies.  Inasmuch  as  practically 
all  civil  actions  are  either  actions  for  breach  of  contract  or  actions 
on  torts,  and  inasmuch  as  the  Court  of  Chancery  had  long  been 
able,  by  virtue  of  its  discretionary  power,  to  grant  injunctions 
and  decrees  for  specific  performance,  to  deal  with  all  actions  on 
contracts  and  torts,  the  Act  might  incautiously  be  read,  or  might 
even,  perhaps,  have  been  fairly  interpreted,  to  confer  on  the  Court 
of  Chancery  co-ordinate  jurisdiction  with  the  Courts  of  Common 
Law  in  all  common  law  actions.  In  fact,  the  statute  was  not  so 
interpreted.  The  Court  of  Chancery  steadily  declined  to  enter- 
tain ordinary  actions  for  damages  on  the  ground  that  it  had  the 
power  (if  it  chose  to  exercise  it)  of  granting  injunctions  and  de- 
crees of  specific  performance  in  such  cases.  In  practice,  it  con- 
tinued to  entertain  only  suits  substantially  brought  to  obtain 
equitable  remedies ;  and  only  in  such  cases,  where  the  right, 
or  quasi-right,  to  an  equitable  remedy  was  clear,  but  there  was 
some  special  inconvenience  in  granting  such  remedies,  did  it 
fall  back  on  its  statutory  powers  and  award  damages  instead. 
By  a  somewhat  rash  exercise  of  the  revising  broom,  the  statute 
has  been  lately  repealed ;  ^  but  it  has  since  been  judicially  held 
that  the  powers  conferred  by  it  on  the  Court  of  Chancery  and 
its  successor,  the  High  Court  of  Justice,  still  remain.^     To  close 

'  15  &  16  Vict.  c.  87.     (The  title  is  not  official.) 

2 16  &  17  Vict.  c.  22  (examiners),  78  (Commissioners  for  Oaths),  98  (Suitors' 
Funds). 

3  21  &  22  Vict.  c.  27.  ^  S.  1.  *  S.  2. 

®  Statute  Law  Revision  Act,  1883,  s.  3. 

'  See  the  position  of  the  statute,  and  the  use  to  be  made  of  it,  elaborately  dis- 
cussed by  the  learned  judges  in  the  case  of  Sayers  v.  Collier  (1884)  28  Ch.  D.  103. 


364     A   SHORT   HISTORY   OF   ENGLISH   LAW 

this  brief  account  of  the  reforms  of  the  years  1850-60,  it  may  be 
mentioned  that,  in  the  latter  year,  an  elaborate  set  of  Con- 
solidated General  Orders  of  the  High  Court  of  Chancery,^  ranging 
from  1556  to  1895,  was  issued  by  Lord  Campbell,  with  the  con- 
currence of  all  the  other  Chancery  judges. 

Thus,  at  long  last,  as  a  visible  emblem  of  unity  was  daily 
growing  in  the  new  Palace  of  Justice  then  being  erected  in  the 
^,  Strand,  half  wav  between  the  historic  site  of  West- 

The  .  *^  .  . 

Judicature  minster  and  the  historic  centre  of  the  commercial  capi- 
tal of  the  world,  there  began  to  grow  up,  in  the  minds 
of  reformers,  the  vision  of  a  great  and  united  Supreme  Court  of 
Justice,  with  uniform  principles,  uniform  law,  and  uniform  pro- 
cedure. With  a  curious  indifference  to  the  facts  of  history,  some 
of  the  most  distinguished  leaders  of  the  new  movement  appeared 
to  draw  their  inspiration  from  the  past,  rather  than  the  future. 
Much  was  heard  of  an  imaginary  Curia  Regis  of  ancient  times, 
which  was  supposed  to  have  been  a  court  of  supreme  and  universal 
jurisdiction,  in  which  all  the  grievances  of  the  subject  were 
redressed ;  and  earnest  appeals  were  addressed  to  the  world  to 
return  to  primitive  simplicity  and  uniformity.  Those  who  have 
read  the  earlier  chapters  of  this  work  will  realize  that,  if  those 
chapters  are  at  all  a  faithful  picture,  the  facts  were  the  exact 
opposite  of  those  imagined  by  the  reformers  who  framed  the 
Judicature  Acts ;  that  anomaly,  privilege,  multiplicity,  and 
narrowness  of  jurisdiction,  not  uniformity  and  simi)licity,  were 
the  marks  of  the  medieval  system  of  justice.  But  it  is  not 
the  first  time  that  the  baseless  visions  of  an  imaginary  Golden 
Age  have  worked  practical  good ;  and  we  need  not  be  the 
less  grateful  to  the  reformers  of  1870,  that  their  \iews  of  legal 
history-  were  unsound. 

It  was  in  the  year  1867  that  a  Royal  Commission  was  appointed 
'  to  enquire  into  the  operation  and  effect  of  the  present  con- 
The  Royal  stitution  of  '  (the  various  Superior  Courts  in  England 
Commission  ,^,^j  Wales)  .  .  .  'and  into  the  operation  and  effect 
of  the  present  separation  and  division  of  jurisdictions  between 
the  said  several  Courts.'  The  Commission  made  two  reports. 
The  first  is  dated  Lady  Day,  1869.  It  is  an  admirably  clear 
and  concise  document,  dealing  with  the  organization  of  business 

1  Published  by  Stevens  &  Sons,  1860. 


MODERN   CIVIL   PROCEDURE  365 

and  the  procedure  of  the  Superior  Courts.  The  second,  dated  3rd 
July,  1872,  made  after  an  enlargement  of  the  scope  of  the  Com- 
mission's enquiry,  to  include  the  Courts  of  Quarter  Sessions  and 
the  inferior  courts,  is  marked  by  great  differences  of  opinion, 
whereas  the  first  Report  is  almost  unanimous.  The  recommen- 
dations of  the  majority  in  the  second  Report  virtually  amounted 
to  a  proposal  for  the  incorporation  of  the  County  Courts  as 
inferior  branches  of  the  High  Courts  of  Justice,  the  first  or  lower 
stage  of  the  proposed  Supreme  Court,  and  the  consequent  virtual 
suppression  of  civil  business  at  the  local  sittings,  or  Assises,  of 
the  Superior  Courts.  These  recommendations  have  never  been 
acted  upon ;  and  need  not  here  be  further  discussed. 

The  chief  recommendations  contained  in  the  first  Report  of  the 
Royal  Commission  were  five  in  number ;  and  they  have  since 
been  substantially  carried  out  by  one  or  more  of  the  numerous 
Judicature  Acts  ^  which  have  since  been  passed. 

The  first  and  most  important  recommendation  was  the  union 
of  all  the  existing  superior  tribunals  into  one  Supreme  Court  of 
Judicature,  organized  into  two  stages,  of  first  instance 
Supreme  and  appeal.  As  we  have  previously  seen,  practically 
the  whole  of  the  Superior  Courts  had  become  directly 
royal  tribunals ;  there  was,  therefore,  no  question  of  abolishing 
independent  jurisdictions.  But,  owing  to  their  history,  they  had 
developed  different  procedures,  and,  to  a  substantial  extent,  actual 
differences  of  law,  and  had,  consequently,  not  infrequently 
come  into  conflict  with  one  another.  In  any  case,  it  was  some- 
thing approaching  a  scandal,  that  different  tribunals  of  co- 
ordinate jurisdiction,  professing  to  administer  the  same  law  and  to 
derive  their  authority  from  the  same  source,  should  thus  differ ; 
and  the  only  way  to  conciliate  rivalries  was  to  incorporate  them 
in  one  body.  This  plan  is  actually  carried  out  by  sections  3-5 
of  the  Judicature  Act,  1873 ; "  and  the  signs  and  symbols  of  the 
union  thus  effected  are  to  be  found  in  the  two  cardinal  rules 
of  the  new  system,  that  no  objection  for  want  of  jurisdiction 
can  be  taken  in  any  branch  of  the  Supreme  Court,^  and  that  no 

Judicature  Acts  of  1873,  1874,  1875,  1877,  1879,  1881,  1884,  1890,  1891,  1894, 
1899,  1902,   1909,   1910. 

^  36  &  37  Vict.  c.  66.  The  position  of  the  Palatinate  Courts  of  Common  Pleas 
at  Lancaster  and  Durham  is  a  little  peculiar.  These  courts  are  not  incorporated 
into  the  Supreme  Court  (s.  3)  ;  but  their  jurisdictions  are  transferred  to  the  High 
Court   (s.    16).  ^  S.  16. 


366     A   SHORT   HISTORY   OF   ENGLISH   LAW 

injunction  or  prohibition  shall  issue  from  any  tribunal  of  that 
Court  to  restrain  any  proceeding  pending  in  any  other.^  Thus, 
though,  to  a  superficial  observer,  the  appearance  of  the  names  of 
the  old  tribunals,  as  titles  of  the  '  Divisions  '  of  the  new  High 
Court  of  Justice,  may  appear  to  indicate  a  mere  change  of 
name,  the  truth  is  very  different.  Though  the  Chancery  Division 
in  practice  still  retains  most  of  the  business  which  would  have 
fallen  to  it  had  it  continued  to  be  the  High  Court  of  Chancery,^ 
it  does  so  only  as  a  matter  of  convenience.  Any  branch  or  tribunal 
of  the  High  Court  can  exercise,  not  merely  all  the  old  powers  of 
Chancery,  but  also  all  the  old  powers  of  all  the  other  tribunals 
incorporated  into  the  High  Court ;  so  that,  in  words  which  are 
the  keynote  of  the  statute,  '  all  matters  so  in  controversy  between 
the  said  parties  respectively  may  be  completely  and  finally  de- 
termined, and  all  multiplicity  of  legal  proceedings  concerning 
any  of  such  matters  avoided.'  ^ 

With  one  matter  the  Royal  Commission  dealt  delicately ; 
the  first  Judicature  Act,  boldly.  It  was  not  quite  clear  whether 
The  House  ^^^"  scope  of  the  Commission's  enquiry  extended  to  the 
of  Lords  highest  appellate  tribunals,  viz.  the  House  of  Lords 
Judicial  and  the  Judicial   Committee  of  the   Privy   Council, 

ommittee  rpj^^  Commission  made  it  fairly  clear,  however,^  that 
it  would  welcome  the  abolition  of  that  surviving  feature  of  medie- 
valism which  linked  legislative  and  executive  bodies  to  the  judi- 
cature. The  statute  of  1873  accordingly  provided,^  that  no 
appeal  should  in  the  future  be  brought  from  any  judgment  or 
order  of  any  of  the  tribunals  incorporated  into  the  Supreme  Court, 
to  the  House  of  Lords  or  the  Judicial  Committee.  But  the  Judi- 
cature Act,  1873,  did  not  take  effect  till  November,  1875.®  In 
the  interval,  a  change  of  Government  occurred ;  and  an 
amending  Act  of  the  latter  year  ^  restored  the  threatened  juris- 
dictions. The  reversal  of  the  policy  of  1873  has  been  productive 
of  important  results.  Nearly  all  the  decisions  which,  in  recent 
years,  have  provoked  strong  feeling,  have  been  decisions  either  of 
the  House  of  Lords  or  of  the  Judicial  Committee,  which  latter 
tribunal  is  composed,  practically,  of  the  same  persons  as  those  who 

1  S.  24  (5).  2  S.  34.         3  S   24  (7).         *  First  Report,  pp.  20-21.         "*  S.  20. 

*  It  waa  intended  originally,  to  take  effect  in  November,  1874  (s.  2) ;  but  this 
clause  was  repealed  by  the  Supreme  Court  of  Judicature  (Commencement)  Act, 
1874,  s.  1. 

'  Judicature  Act,  1875  (38  &  39  Vict.  c.  77)  s.  2. 


MODERN   CIVIL  PROCEDURE  367 

de  facto  exercise  the  appellate  jurisdiction  of  the  House  of  Lords.^ 
These  persons  are  not  technically  '  judges  ' ;  but '  lords  of  appeal  ' 
or  members  of  the  Judicial  Committee,  i.e.  persons  whose  functions 
are,  at  least  partially,  legislative  and  executive.  It  is  not  known 
how  far  their  lordships  regard  themselves  as  bound  by  the  strict 
rules  of  law  in  dealing  with  appeals ;  certainly  their  position  in 
such  matters,  inherited  as  it  is  from  remote  history,  is  nowhere 
legally  defined  in  documents  accessible  to  the  public. 

One  other  important  point  was  involved  in  the  first  great  propo- 
sal of  the  Royal  Commission.  Though,  doubtless,  most  of  the 
Conflicting  differences  in  the  rules  administered  by  the  different 
Rules  of  courts  incorporated  by  the  Judicature  Act  had  grown 
out  of  differences  of  procedure,  some  of  them  had,  in 
effect,  hardened  into  rules  of  law.  Still,  if  different  legal  rules 
are  concerned  with  different  subjects,  the  differences,  though 
'  inelegant  '  (as  a  Roman  jurist  would  have  said)  are  not  fatal 
to  practical  harmony.  Different  rules  of  succession  to  real 
and  personal  property  have  worked  for  ages  in  the  same  country 
without  serious  inconvenience.  But  when  difterent  tribunals 
apply  different  rules  of  law  to  the  same  subject-matter,  then 
the  fate  of  a  litigant  obviously  depends  on  his  choice  of  tribunal ; 
and,  when  all  tribunals  are  fused,  there  must  be  some  means  of 
deciding  which  rule  is  to  prevail. 

This  was  the  object  of  the  famous  section  25  of  the  first  Judi- 
cature Act.  It  dealt  with  the  chief  cases  in  which  the  rules 
of  the  incorporated  courts  differed  on  the  same  subjects ;  and 
decided  between  them.  Thus,  the  rules  of  the  Court  of  Bank- 
ruptcy differed  from  those  of  the  Court  of  Chancery  in  the 
administration  of  insolvent  estates;  the  rules  of  the  Court 
of  Bankruptcy  were,  at  least  partially,  adopted.^  The  rules  of 
the  Court  of  Chancery  differed  from  those  of  the  Common  Law 
Courts  in  many  matters  in  which  there  was  '  concurrent '  juris- 
diction;   the  rules  of  the  Court  of  Chancery  were  preferred.^ 

'  Any  member  of  the  House  has  a  right  to  attend  and  vote  at  the  hearing  of 
appeal.  But  appeals  may  not  be  'heard  and  determined'  unless  three  Lords  of 
Appeals  are  present  at  the  hearing  and  determination  (Appellate  Jurisdiction  Act, 
1876,  s.  5).     No  lay  peer  has  taken  part  in  an  appeal  since  1883. 

2  S.  25  (1),  amended  by  s.  10  of  the  Act  of  1875.  Strictly  speaking,  there  was  no 
conflict ;  for  the  Court  of  Bankruptcy  at  that  time  only  dealt  with  the  estates  of 
living  debtors,  Chancery  only  with  those  of  deceased  debtors.  But  the  ditTerences 
were  a  scandal. 

3  S.  25  (2)-(8). 


368     A   SHORT   HISTORY   OF   ENGLISH  LAW 

In  the  principle  on  which  damages  for  collision  between  ships 
were  assessed,  the  rule  of  the  Court  of  Admiralty  differed  from 
that  of  the  Common  Law  Courts ;  the  rule  of  Admiralty  was 
adopted.^  Finally,  the  section  contains  a  general  enactment  ^ 
that,  in  any  conflict  between  the  rules  of  Equity  and  those  of 
Common  Law,  '  with  reference  to  the  same  matter,'  the  former 
shall  prevail. 

Before  leaving  this  central  change  of  the  judicial  system,  it  is 
necessary,  even  at  the  risk  of  being  accused  of  boredom,  for  the 
Law  and  historian  to  point  out,  that  the  Judicature  Acts  have 
Equity  still     not  dcstroved  the  distinction  between  Law  and  Equitv, 

distinct  .  *      .  ,  ^  .    ^ 

even  in  relation  to  the  same  matters.  Jbor  obvious 
instance,  legal  estates  and  equitable  interests  in  the  same  land 
can  subsist  comfortably  side  by  side,  and  be  governed  by  common 
law  and  equitable  rules  respectively.  Legal  remedies  are 
still  due  ex  debito  justiticp,  equitable  remedies  only  ex  gratia. 
It  is  even  true  that,  where  no  considerations  of  Equity  forbid, 
or,  as  it  is  put,  '  where  the  equities  are  equal,'  the  strict  rule  of 
Law  is  even  superior  to  the  rule  of  Equity.^  It  is  only  where, 
owing  to  a  conflict  between  the  rules  of  Law  and  of  Equity,  in 
the  same  matter,  it  is  necessary,  if  the  equitable  rule  is  to  pre- 
vail, that  the  common  law  rule  should  be  set  aside,  that  the 
concluding  clause  of  section  25  applies. 

Only  a  few  words  can  be  given  to  the  remaining,  and  less 
important,  recommendations  of  the  Royal  Commission.  The 
second  aimed  at  the  shortening  of  pleadings ;  and 
suggested,  in  effect,  that,  without  the  special  leave 
of  the  Court,  these  should  never  exceed  three  in  number,  viz. 
(1)  a  brief  statement  of  the  plaintiff's  claim,  setting  out  the 
material  facts,  but  neither  the  evidence  nor  the  arguments,  (2)  a 
similar  brief  statement  of  the  facts  on  which  the  defendant  relies, 
and  (3)  a  reply,  or  joinder  of  issue,  by  the  plaintiff.  If  the  defend- 
ant has  any  ground  of  action  against  the  plaintiff,  this  should  be 
made  the  subject  of  a  counter-claim,  delivered  with  the  defence. 
Thus  both  claims  could  be  tried  in  one  action.^  This  recom- 
mendation was,  virtually,  adopted  by  the  Act  of  1873;^  and  has 


»S.  25  (9).  «S.  25  (11). 

3  Pitcher  V.  Rawlins  (1872)  L.R.  7  Ch.  App.  260  (land) ;   Joseph  v.  Lyons  (1884) 
15  Q.B.D.  280  (chattels). 

<  First  Report,  pp.  11-12.  » S.  69  and  Schedule,  18-24. 


MODERN   CIVIL  PROCEDURE  369 

since  been  made  the  subject  of  Rules  enacted  in  pursuance  of 
the  statutory  authority  conferred  by  the  Acts  themselves.^ 

The  third  recommendation  of  the  Commission  was  the  aban- 
donment of  the  jury  system  as  the  sole,  or,  at  least,  the  ideal 
Jury  method   of  trial  of  questions  of   fact.     The  Report 

System  pointed  out  that,  owing  to  the  increasing  complexity 

of  legal  business,  there  were  many  cases  in  which  a  decision  of 
fact  by  a  judge,  or,  in  complicated  matters  of  account,  by  a 
referee,  was  far  preferable  to  the  verdict  of  a  jury.  The  Com- 
mission proposed,  in  effect,  that  the  plaintiff  should  be  allowed 
to  choose,  among  these  three,  his  own  method  of  trial ;  sub- 
ject, in  the  case  of  objection  by  the  defendant,  to  the  discretion 
of  the  Court.^  This  recommendation  was  substantially  adopted 
by  the  Act  of  1873 ;  ^  and  has  been  the  subject  of  careful  con- 
sideration by  the  Rules.  But  the  unfettered  choice  originally 
proposed  for  the  plaintiff  has  been,  in  effect,  substantially  re- 
stricted by  the  last  named  authority.'*  The  plaintiff  or  the  de- 
fendant may  insist  on  a  trial  by  jury  in  cases  of  slander,  libel, 
false  imprisonment,  '  seduction,'  or  breach  of  promise  of  marriage  ;^ 
but  the  Court  may  direct  a  trial  without  a  jury  of  any  question  of 
fact  which,  before  the  Act,  could  have  been  tried  without  a  jury, 
as  well  as  any  matter  requiring  any  prolonged  examination  of 
documents  or  accounts,  or  any  scientific  or  local  investigation.® 
As  a  matter  of  practice.  Chancer}',  in  spite  of  statutory  powers, 
rarely  employed  the  jury  system  ;  and  this  practice  is  confirmed 
by  the  Rules,  which  forbid  the  trial  by  jury  of  any  matter  as- 
signed by  the  Act  of  1873  to  the  Chancery  Division  —  except 
upon  a  judge's  order. "^ 

The  fourth  recommendation  of  the  Royal  Commission  con- 
templated little  change  in  the  existing  practice.  Owing  to  the 
enactments  previously  noticed,^  almost  all  testimony 
(including  that  in  the  Probate,  Divorce,  and  Admiralty 
Courts)  was,  in  1869,  given  orally  at  the  trial.  Only  in  Chancery 
the  practice  "of  taking  evidence  out  of  Court  before  '  Examiners ' 
continued.     It  was  proposed  to  adapt  the  Equity  practice  to 

1  O.  XIX.  The  Rules  have  also  introduced  the  practice  of  obtaining  summary- 
judgment  without  pleadings,  on  a  'specially  endorsed'  writ  (O.  XIV). 

2  Report,  pp.  12-13.  '  g.  56.  ^R.  S.  C.  XXXVI.  ''R.  1. 
«  R.  3.     These  matters  are  usually  tried  by  the  Official  Referees  attached  to  the 

Court  under  ss.  57  and  83  of  the  Act  of  1875. 

7  R.  3.  8  jinte,  pp.  343,  344. 


370    A   SHORT  HISTORY  OF  ENGLISH  LAW 

that  of  the  other  Courts ;  ^  and  this  proposal  was  accepted  by 
Parhament,  subject  to  the  reservation,  that  evidence  on  inter- 
locutory application  might  continue  to  be  given  by  affidavit. 
The  Act  of  1873,  however,  contained  a  provision  that,  even  on 
such  occasions,  a  witness  might,  on  the  application  of  either 
party,  be  ordered  to  attend  for  cross-examination.^ 

The  fifth  recommendation  of  the  Royal  Commission  vras 
concerned  with  the  sittings  of  the  Court.  Originally  these  were 
Terms  and  confined  to  four  short  'Terms,'  fixed  by  the  ecclesias- 
Sittings  ^j^^al  calendar.     But,   as  legal  business  grew,    more 

and  more  cases  were  disposed  of  outside  these  strict  limits ; 
and  thus  the  '  sittings '  of  the  Courts  became  much  more  ex- 
tensive than  the  legal  'Terms.'  IMoreover,  it  was  one  of  the 
few  advantages  of  the  cumbrous  and  antiquated  system  of 
Commissions,  under  which  ordinary  jury  cases  were  tried,  that 
there  were  no  time  limits  to  these  trials ;  the  King,  though  he 
was  bound  by  statute  to  send  judges  or  commissioners  on  circuit 
at  least  so  many  times  a  year,  could  (within  wide  limits)  choose 
his  own  time  for  sending  them. 

The  Royal  Commission  in  effect  proposed,^  that  the  sittings 
of  the  Court  should  constitute  Terms ;  in  other  words,  that  all 
kinds  of  legal  business  should  be  capable  of  transaction  at  any 
time  when  the  Courts  were  sitting.  Further  than  that,  the 
Commission  made  a  most  important  recommendation,  to  the 
effect  that,  as  regards  the  heavy  business  of  the  metropolitan 
area,  in  place  of  the  existing  system  by  which  each  of  the  three 
Common  Law  Courts  held  separate  Nisi  Prius  sittings  in  London 
and  Middlesex  three  times  a  year,  there  should  be  a  common 
system  of  continuous  sittings  throughout  the  legal  year  for  the 
Home  Counties,  in  which  all  common  law  actions  should  be 
entered  on  a  single  list,  and  disposed  of  in  rotation  by  as  many 
judges  as  should  be  necessary,  or  could  be  spared,  for  the  purpose. 
Even  during  the  holding  of  the  circuits,  there  were  to  be  at  least 
two  Nisi  Prius  Courts  sitting  in  London.  Finally,  the  Commis- 
sion recommended  that  the  Home  Circuit,  as  a  separate  entity, 
should  be  abolished  altogether ;  its  criminal  work  being  absorbed 
by  the  Central  Criminal  Court  established    in    1834,"*  and  its 

»  Report,  p.  14.  ^  Ss.  36,  37.  ^  Yhst  Report,  pp.  15-16. 

*  By  the  Central  Criminal  Court  Act,  1834  (4  &  5  Will.  IV,  c.  36)  for  a  metro- 
politan area  carved  out  of  the  Home  Counties.  It  sits  twelve  times  a  year  for  the 
decision  of  heavy  criminal  cases. 


MODERN  CIVIL  PROCEDURE  371 

civil  business  being  absorbed  by  the  Nisi  Prius  Courts  for  INIiddle- 
sex. 

Most  of  these  recommendations  were  adopted  by  Parliament, 
and  appear  in  the  Judicature  Act,  1873.  By  that  Act,  the  year 
is  divided  into  Sittings  and  Vacations ;  and,  for  purposes  of 
Court  work,  'Terms'  cease  to  exist. ^  Continuous  sittings  in 
London  and  ^Middlesex  are  provided  for ;  and  the  formerly  inde- 
pendent and  fleeting  Courts  created  by  the  opening  of  circuit 
commissions  are,  in  effect,  made  branches  of  the  Supreme  Court.^ 
But  the  ancient  system  of  issuing  special  commissions  for  each 
sitting  on  assise  or  circuit  is  not  disturbed ;  ^  and  the  proposal 
to  abolish  the  Home  Circuit  is  not  adopted.  A  greater  flexibility 
in  the  circuit  system  was  rendered  possible  by  the  amending 
Judicature  Act  of  1875,  which  ■*  empowered  Her  Majesty,  by 
Order  in  Council,  to  fix  the  dates,  seasons,  and  places  for  the 
holding  of  assise  cases.  But  the  somewhat  hesitating  sugges- 
tions of  the  Commission  ^  for  a  re-arrangement  of  the  basis  of  the 
circuit  system  were  not  adopted ;  and  the  reform  of  that  system 
remains  one  of  the  most  pressing  needs  of  the  present  day. 

Mention  has,  incidentally,^  been  made  of  the  'County  Courts' 
established  in  the  nineteenth  century  for  the  local  decision  of 
County  disputes  in  small  matters.     The  need  for  such  tri- 

Courts  bunals  had  been  felt  ever  since  the  virtual  disappear- 

ance of  the  ancient  local  courts  of  the  shire  and  the  Hundred, 
and  the  Courts  Merchant  of  the  chartered  boroughs,  at  the  close 
of  the  Middle  Ages.  These  ancient  courts  had,  as  we  have 
seen,  been  virtually  destroyed  by  the  rivalry  of  the  circuit- 
system.  But  the  machinery  of  the  circuit-system  was  alto- 
gether too  costly  for  the  settlement  of  small  disputes ;  and, 
w^hen  business  of  this  kind  increased,  with  the  increase  of  wealth 
and  population,  in  the  eighteenth  century,  the  corresponding 
need  for  cheap  and  speedy  justice  was  met  by  the  establishment, 
as  occasion  or  urgency  demanded,  of  special  local  tribunals, 
usually  by  virtue  of  private  Acts  of  Parliament.'^  But  this 
system,  if  system  it  can  be  called,  was  thoroughly  bad.     In 

'  S.  26.  (There  are  still  a  few  dates  regulated  by  the  old  Terms ;  and  thej'  are 
enshrined  in  the  prandial  arrangements  of  the  Inns  of  Court.) 

2  S.  29.  3  Ibid.  ■•  38  &  39  Vict.  c.  77,  s.  23. 

6  First  Report,  p.   17.  «  Ante,  p.  365. 

'  A  list  of  the  tribunals  will  be  found  in  the  Schedule  to  the  County  Courts  Act 
of  1846. 


372     A   SHORT  HISTORY  OF  ENGLISH  LAW 

spite  of  a  hesitating  attempt  in  the  year  1754  ^  to  introduce 
something  like  uniformity,  these  'Courts  of  Request'  or  'Con- 
science,' as  they  were  commonly  called,  remained,  for  nearly 
another  century,  a  mass  of  anomalous  and  isolated  units,  each 
governed  by  its  own  rules,  and  strictly  limited  in  scope  to  a 
particular  area. 

In  the  year  1846,  however,  a  great  and  successful  attempt 
at  reform  was  made.     By  a  statute  of  that  year,^  and  Orders  in 

,  „  ^      Council  thereunder,  the  whole  of  England  and  Wales 
Act  of  1846  ,  .        (  .      .     ,        r  . ,    , 

was  mapped  out  into    circuits,    each  provided  with 

one  (or,  in  rare  cases,  two),  professional  judges,  and  subdivided 
into  'districts,'  each  provided  with  a  Court  for  the  decision  of 
cases  involving  limited  amounts.  Each  judge  visits  the  Courts 
within  his  circuit  at  frequent  intervals,  and  disposes  of  cases 
awaiting  trial,  in  a  summary  manner.^  Generally  speaking, 
though  subject  to  certain  exceptions,  a  case  must  be  tried  in 
the  district  in  which  it  arises,  or  in  which  the  defendant  lives. 
The  jurisdiction  of  the  County  Court,  which  was  limited  by  the 
statute  of  1846  to  £50  for  ordinary  'Common  Law'  business, 
and  £500  in  'Equity'  matters,  has,  by  a  later  statute  of  1903,* 
been  increased  to  a  limit  of  £100  in  the  former  class;  and  there 
is  power  in  the  High  Court  to  remit  compulsorily  any  action 
within  this  limit  for  trial  in  a  County  Court,  and  even,  if  the 
plaintiff  will  not  give  security  for  costs,  to  remit  any  action  of 
Tort  where  the  defendant  is  prepared  to  swear  that  the  plaintiff, 
if  defeated,  cannot  pay  costs.  ^  Certain  special  kinds  of  cases, 
e.g.  libel,  slander,  seduction,  and  'breach  of  promise,'  are  ex- 
cluded from  the  jurisdiction  of  the  County  Court.®  On  the 
other  hand,  subject  to  these  exceptions^  any  Common  Law  case, 
however  important,  may,  by  consent  of  the  parties,  be  tried  in  a 
County  Court.^ 

'  27  Geo.  II,  c.  16.  (The  act  is  an  admirable  example  of  the  'omnibus'  type 
of  the  eighteenth  century.  It  deals  with  the  destruction  of  turnpikes,  the  exten- 
sion of  the  powers  of  the  Trustees  of  the  British  IMuseuin,  the  fees  of  Justices' 
Clerks,  the  offences  of  waggoners,  and  other  miscellaneous  matters.) 

'  9  &  10  Vict.  c.  95.  (It  has  been  repealed,  but  largely  re-enacted,  by  the  County 
Courts  Act,  1888,  at  present  the  chief  authority  on  the  subject.) 

'  It  is  possible  for  the  judge  to  order,  either  upon  or  without  the  request  of  a 
party,  a  trial  by  jury.  But  such  cases  are  rare ;  antl,  in  any  event,  there  are  no 
pleadings. 

*  3  Edw.  VII,  c.  42  (County  Courts  Act,  1903). 
"  Act  of  1888,  83.  65,  66. 

•  S.  56.  7  S.  64. 


MODERN   CIVIL  PROCEDURE  373 

In  addition  to  its  ordinary  'Common  Law'  and  'Equity'' 
business,  a  County  Court  specially  selected  by  Order  in  Council 
Admiralty  ^^  ^^^  ^^  Parliament  for  the  purpose,  may  exercise 
^^d^Bank-  Admiralty  jurisdiction  up  to  £300  (if  the  claim  is  for 
Jurisdiction  towage,  necessaries,  or  wages,  only  up  to  £150),^  and 
bankruptcy  jurisdiction  up  to  any  amount.^  Moreover,  there 
has  been  a  tendency  in  recent  years  to  throw  upon  the  County 
Court  judges  a  large  amount  of  quasi-judicial  or  administrative 
business.  Thus,  they  may  be  called  upon  to  decide  disputes 
under  the  Friendly  Societies  Act,  and  to  assess  compensation 
as  arbitrators  under  the  Agricultural  Holdings  Acts  and  the 
Workmen's  Compensation  Act.  Li  the  latter  respect,  their 
functions  are  of  great  and  growing  importance. 

Finally,  a  few  words  must  be  said  about  the  uninteresting 
but  important  subject  of  bankruptcy  jurisdiction,  or  the  process 
Bankruptcy  ^y  which  the  property  of  an  insolvent  debtor  is 
Procedure  realized  for  the  benefit  of  his  creditors,  in  proportion 
to  their  proved  claims. 

Whether  or  not  any  informal  bankruptcy  process  existed  at 
the  common  law,  or  was  practised  in  any  of  the  old  local  courts 
administering  the  Law  Merchant,  it  seems  impossible  at  present 
to  say ;  but  the  former  alternative,  at  least,  is  unlikely.  The 
essence  of  bankruptcy  proceedin-gs  is,  that  all  creditors  shall  be 
paid  rateably ;  and,  with  the  machinery  for  enforcing  individual 
debts  which  was  available  in  the  King's  Courts  from  the  thir- 
teenth century  onwards,  it  is  unlikely  that  any  customary  process 
would  have  sufficed  to  restrain  the  individual  creditor  from 
Statutes  of  stealing  a  march  upon  his  fellows.  But  the  statutory 
Henry  VIII  process  begins  so  far  back  as  the  year  1542,  when 
an  '  Act  against  such  persons  as  do  make  Bankrupt '  was  passed 
by  Henry  VIH's  Parliament.^  This  statute  adopts  a  sharp 
way  with  offenders ;  empowering  a  quorum  of  certain  high 
officials  (Chancellor,  Treasurer,  President  of  the  Council,  Privy 
Seal,  and  the  Chief  Justices)  to  '  take  such  order '  with  their 
bodies  and  property  (lands  as  well  as  chattels)  as  shall  be  neces- 
sary to  pay  all  their  debts  in  full,  or,  at  least,  rateably.  Of  the 
familiar    features    of    modern    bankruptcy    process,    we    notice 

'  County  Courts  Admiralty  Jurisdiction  Act,  1868,  ss.  2,  3,  5.  (By  consent 
the  amount  may  be  unlimited.) 

2  Bankruptcy  Act,  1883,  ss.  92,  95-100.  3  34  &  35  Hen.  VIII,  c.  4. 


374    A  SHOUT  HISTORY  OF  ENGLISH  LAW 

already,  in  the  Act  of  Henry  VIII,  the  power  to  summon  and 
examine  persons  beheved  to  be  conceahng  property  of  the  bank- 
rupt,^ to  deal  with  fictitious  or  collusive  claims  against  the 
bankrupt,-  and  to  punish  absconding  debtors.^  But  the  remedies 
of  the  creditor  were  only  to  be  suspended,  not  extinguished,  by 
the  bankruptcy.  The  debtor  was  to  remain  legally  liable,  as 
before,  for  the  unpaid  balances  of  all  his  debts."* 

The  statute  of  Henry  VIII  was  not,  in  terms,  confined  to 
merchants.  But  it  appears  to  have  been  so  regarded  in  prac- 
And  Eliza-  ^^^^  '  ^^^  ^^^^  ^^  ^^^  ^^^^  cares  of  the  statute  of  Eliza- 
beth beth  is  to  define  the  class  of  merchants  capable  of 
being  made  bankrupt.''  This  statute  marks  a  great  advance  in 
the  development  of  bankruptcy  procedure.  It  carefully  enu- 
merates^ 'acts  of  bankruptcy,'  i.e.  such  acts  of  a  debtor  as  will 
justify  the  Court  in  commencing  bankruptcy  process  against 
him.  It  provides  "^  that  the  bankrupt  and  his  property  shall 
be  handed  over  to  a  body  of  'Commissioners'  appointed  by 
the  Lord  Chancellor  under  the  Great  Seal,  who  are  to  realize 
the  property  for  the  benefit  of  the  creditors,  and  are,  for  that 
purpose,  invested  with  large  powers,  both  over  the  bankrupt 
himself,  and  persons  suspected  of  colluding  with  him.^  Property 
acquired  by  the  bankrupt  after  the  commencement  of  the  bank- 
ruptcy is  likewise  to  be  made  available,  through  the  Commis- 
sioners, for  the  payment  of  his  debts.^  A  bankrupt  failing  to 
surrender  himself  to  his  Commissioners  after  due  proclamation, 
is  to  be  deemed  an  outlaw ;  and  any  one  sheltering  him  is  to  be 
liable  to  fine  or  imprisonment.^" 

An  amending  statute  of  the  year  1603  introduced  ^^  the  now 
important  feature  of  the  formal  'examination'  of  the  bank- 
rupt as  to  the  conduct  of  his  affairs,  and  made  an  important 
relaxation  in  the  medieval  rule  against  the  assignment  of  choses 
in  action,^-  by  allowing  debts  due  to  the  bankrupt  to  be  sold  by  " 
his  Commissioners.^^  In  1662  it  was  deemed  necessary,  in  con- 
sequence of  the  decision  in  Sir  John  Wolstenholme's  Case,  de- 
livered by  the  Upper  Bench  in  1653,  to  pass  a  statute  ^^  declar- 
ing that  shareholders  in  the  privileged  East  India  and   Guinea 

1  34  &  35  Hen.  VIII,  c.  4,  s.  2.  « Ibid.,  ss.  3,  4.  '  Ibid.,  a.  5. 

*Ibid.,s.6.  M3  Eliz.  (1570)  c.  7,  3.  1.  ^  Ibid.  ^  S.  2.  «  Ss.  5,  6. 

•  S.  11.  "  S.  9.  "  1  Jac.  I,  c.  15,  s.  6.  "  Ante,  p.  294. 

w  1  Jac.  I,  c.  15,  s.  13.  "  13  &  14  Car.  II,  c.  24. 


MODERN  CIVIL  PROCEDURE  375 

joint-stock  Companies  should  not,  merely  as  such,  be  liable  to 

become  bankrupt. 

The  early  eighteenth  century  is  remarkable  for  the  first  sign 

of  any  relenting  from  the  pitiless  severity  of  its  predecessors 

.  ,  .  .  towards  the  unfortunate  merchant.     A  statute  of  the 

Act  of  Anne  _       ,  . 

year  1705  '■  permits  an  allowance  for  mamtenance  to 

be  made  to  a  bankrupt  who  duly  surrenders,  and,  even  more 

important,  grants  him  his  'discharge'  from  all  debts  owing  at 

the  commencement  of  his  bankruptcy.^     A  significant  provision 

of  the  same  statute  also  forbids  any  allowance  for  'eating   or 

drinking'  of  the  Commissioners  or  other  persons  at  meeting  of 

creditors.^ 

Apparently,  however,  this  leniency  was  not  without  its  dan- 
gers ;  for  we  notice  a  distinctly  severer  tone  in  the  next  great 
Statute  of  bankruptcy  statute,  passed  in  1732.^  This  Act 
1732  seems  even  to  hint  that  people  deliberately  'brought 

on'  their  own  bankruptcies  for  the  sake  of  getting  rid  of  their 
liabilities ;  and  it  both  increases  the  list  of  bankruptcy  offences,^ 
and  extends  the  definition  of  persons  liable  to  be  made  bank- 
rupt.^ The  bankrupt  is  not  to  obtain  his  discharge,  unless  a 
certificate  of  due  compliance  with  the  law  is  furnished  b}^  his 
Commissioners,  with  the  consent  of  four-fifths  of  the  creditors, 
to  the  Lord  Chancellor.^  The  Act  of  1732  is  also  interesting  as 
introducing^  the  institution  of  the  'assignee,'  appointed  at 
first  by  the  Commissioners,  afterwards  by  the  creditors,  to  give 
closer  attention  to  the  affairs  of  the  bankrupt  than  was  possible 
for  the  Commissioners. 

The  consolidating  and  amending  Bankruptcy  Act  of  1825  ^ 
does  not  contain  any  features  of  startling  novelty ;  though 
mention  may  be  made  of  the  preferential  payment 
of  workmen's  wages,^°  the  power  given  to  the  Com- 
missioners to  'bar'  the  estates  tail  of  the  bankrupt,^^  and  to 
nine-tenths  in  value  of  the  creditors  to  accept  a  'composition' 
from  the  debtor  in  lieu  of  continuing  the  bankruptcy  proceed- 
ings,^^ and  the  limitation  of  the  landlord's  right  to  distrain  on 

'4  &  5  Anne,  c.  4  (or  4  Anne,  c.  17).  "  S.  8.  3  s.  21. 

^  5  Geo.  II,  c.  30.  »  S.  1.  «  S.  39  (bankers,  brokers,  and  factors). 

'  S.  10.  8  S.  30.  9  6  Geo.  IV,  c.  26.  i"  S.  48. 

1'  S.  65.     The  preceding  section  seems  to  contain  a  foreshadowing  of  the  policy 
afterwards  adopted  in  the  Act  for  the  Abolition  of  Fines  and  Recoveries. 
12  S.  133. 


376    A  SHORT  HISTORY   OF   ENGLISH  LAW 

the  bankrupt's  goods  to  one  year's  arrears  of  rent.^  But  a 
radical  change  in  the  machinery  of  bankruptcy  administration 
took  phice  in  1831,-  when  the  formerly  independent  groups  of 
Commissioners  gave  way  to  a  Court  of  Bankruptcy  with  a 
Chief  and  three  *  puisne  '  judges,  of  whom  three  were  to  act  as 
a  Court  of  Review  or  appeal,  and  a  staff  of  subordinate  '  Com- 
missioners'  acting  under  the  'fiat'  of  the  Court.^  There  can 
be  little  doubt  that  the  system  of  independent  Commissioners 
was  thoroughly  bad  ;  but  it  may  be  doubted  whether  the  scheme 
of  1831  was  a  great  improvement  upon  it.  For  the  Act  of  1831 
saddled  upon  the  country  not  merely  the  judicial  staff  of  the 
new  Court,  and  the  London  and  country  Commissioners,  but  a 
staff  (not  to  exceed  thirty)  of  '  official  assignees,'  ^  to  assist  the 
*  creditors'  assignees '  appointed  under  the  statute  of  1732. 
However,  in  1842,^  the  country  Commissioners  were  abolished, 
and  country  bankruptcies  removed  to  the  local  District  Courts 
set  up  under  the  Act.  The  same  statute  ^  took  away  the  power 
of  the  creditors  to  veto  the  grant  of  the  debtor's  discharge,  and 
left  the  latter  entirely  to  the  discretion  of  the  Court. 

In  the  year  1847  came  a  curious  and,  apparently,  inconsistent 
statute.^     On  the  one  hand,  it  abolished^  the  '  Court  of  Review  * 
set  up  in  1825,  as  well  as  the  office  of  Chief  Judge ; 
*^  °  ^  transferring  its  jurisdiction  to  a  Vice-Chancellor  to 

be  designated  by  the  Lord  Chancellor  for  the  purpose.^  It 
also  transferred  the  jurisdiction  of  the  '  District '  or  local  Bank- 
ruptcy Courts  set  up  under  the  Act  of  1842  to  the  new^ly-estab- 
lished  County  Courts. ^°  On  the  other  hand,  it  established  a 
new  Court  for  the  Relief  of  Insolvent  Debtors,^^  i.e.  for  the 
benefit  of  those  insolvent  non-mercantile  persons  who,  though 
incapable  of  being  made  bankrupt,  were  yet  able,  by  surrender- 
ing their  property,  to  escape  imprisonment  for  debt,  under  the 
provisions  of  an  Act  of  the  year  1809.^^ 

'  S.  74.  M  &  2  Will.  IV,  c.  56. 

3  1  &  2  Will.  IV,  c.  56,  s.  1.  *  S.  22. 

'  5  &  6  Vict.  c.  122,  ss.  46,  59.  «  S.  39. 

MO  &  11  Vict.  c.  102.  8  Ss.  1,  2. 

'  On  the  establishment  of  the  Court  of  Appeal  in  Chancery,  in  the  year  1851, 
the  appellate  jurisdiction  in  Bankruptcy  was  transferred  to  the  Lords  Justices 
then  created  (14  &  15  Vict.  c.  83,  s.  7.) 

>«  10  &  11  Vict.  c.    102,  s.  4. 

"  Ibid. 

"  49  Geo.  Ill,  c.  115.  The  process  had  been  improved  by  the  Judgments  Act, 
1838. 


MODERN   CIVIL   PROCEDURE  377 

In  1849  came  another  great  consolidating  statute,'  without 
substantial  change  in  principle.  True  that  it  continues  the 
Act  of  1849  J^endencyr  previously  begun,  of  eliminating  quasi- 
independent  Commissioners.  But  in  other  respects 
it  does  not  seriously  depart  from  the  scheme  of  1S25 ;  though 
it  further  enlarges  the  definition  of  a  '  trader,'  ^  adds  failure  to 
comply  with  a  (Debtor's)  Summons  to  the  list  of  '  acts  of  bank- 
ruptcy,' ^  and  introduces  ^  the  rule  by  which  the  creditors' 
representative  is  entitled  to  '  disclaim '  a  lease  or  other  con- 
tinuous obligation  of  the  bankrupt,  so  as  to  capitalize  at  once 
all  claims  in  respect  of  it. 

The  first  of  the  modern  Bankruptcy  codes  may  be  said  to  be 
that  of  1861.^  It  abolished  the  fundamental  distinction,  which 
had  existed  so  long,  between  the  trader  and  the  non- 
trader,  and  made  every  adult  person  (other  than  a 
married  woman)  liable  to  be  declared  bankrupt.^  As  a  natural 
consequence,  it  also  abolished  the  Court  for  the  Rehef  of  Insol- 
vent Debtors  ;  ^  and  put  the  crown  on  a  tendency,  long  manifest, 
by  doing  away  with  '  Commissioners '  and  transferring  the  con- 
trol of  the  creditors'  assignees  to  the  Registrars  of  the  Court.^ 
It  added  a  further  safeguard  against  abuse  of  bankruptcy  process 
by  placing  conditions  on  the  grant  of  an  order  of  discharge. '° 

The  Bankruptcy  Act,   1869,  however,   manifested  a  distinct 

reaction  against  the  tendency  to  keep  a  tight  official  hand  on 

the  administration  of  a  bankrupt's  estate.     The  policy 

Act,ofi869       p  ^„^^  ,.  ,  ,.  / 

or  l5b9  was  to  entrust  every thmg  to  the  creditors  m 

the  belief  that  motives  of  self-interest  would  produce  efficiency. 
The  '  official  assignee  '  of  the  Court  was  entirely  abolished,'^  in 
favour  of  the  creditors'  assignee,  or  *  trustee,'  who  was  to  be 
supervised  by  a  Committee  of  Inspection,  elected  by  the  credi- 
tors from  among  their  own  number.'-  To  prevent  undue  leniency, 
however,  further  restrictions  and  limitations  were  placed'^  on 
the  grant  of  the  bankrupt's  discharge.  The  Act  of  1869  is, 
further,  important  as  introducing  the  well-known  'voluntary 
settlement'  clause,''*  by  virtue  of  which  voluntary  dispositions  of 
property,  even  though  perfectly  bond  fide,  are  set  aside  as  of 
course,  if  the  settler's  bankruptcy  follows  within  a  limited  time. 

>  12  &  13  Vict.  c.  106.  2  S.  7.  '  S.  65.  *  S.  78. 

5  S.  145.  «  24  &  25  Vict.  c.  134.  '  S.  69.  «  g.  i.  9  S.  4. 

i°S.  159.       "  32  &  33  Vict.  c.  71,  s.  14  (1).       ^'^  Ibid.  (3).       "  s_  43,       14  s.  91. 


378    A   SHORT  HISTORY  OF  ENGLISH  LAW 

In  that  Act,  however,  the  settlement  clause  only  applied  to  a 
trader.  The  Act  also  contained  ^  an  elaborate  scheme  of  volun- 
tary '  liquidation  by  arrangement,'  by  which  creditors  might,  if 
they  pleased,  dispense  entirely  with  the  assistance  of  the  Court, 
as  well  as  a  renewal  of  the  policy  of  1825,  by  which,  after  the 
passing  of  an  '  extraordinary '  resolution,  duly  confirmed,  the 
creditors  might  simply  accept  a  '  composition '  offered  by  the 
debtor,  without  further  process.^ 

Unfortunately,  however,  the  confidence  in  enlightened  self- 
interest  manifested  by  the  Act  of  1869,  did  not  prove  to  be 
entirely  justified.  In  fact,  the  psychology  of  its  framers  was  at 
fault.  They  failed  to  realize,  that  a  busy  tradesman  or  pro- 
fessional man  would  far  rather  '  write  off '  a  moderate  loss,  and 
have  done  with  it,  than  waste  time  in  attending  creditors' 
meetings  or  investigating  his  debtor's  accounts.  The  inevitable 
consequence  of  this  fact  was,  that,  under  the  Act  of  18G9,  bank- 
ruptcy proceedings  tended  to  fall  entirely  into  the  hands  of 
lawyers  and  accountants,  whose  zeal  for  despatch  and  economy 
was  apt  to  wane,  in  the  face  of  indifference  on  the  part  of  those 
who  should  have  been  their  constant  critics.  Accordingly,  in 
the  year  1883,  INIr.  Joseph  Chamberlain,  then  President  of  the 
Board  of  Trade,  determined  upon  a  radical  change  of  policy ; 
and  the  statute  of  that  year  is  as  remarkable  for  its  insistence 
on  State  control  as  was  its  predecessor  of  1869  for  its  confidence 
in  laissez-faire. 

By  virtue  of  the  Bankruptcy  Act,  1883,^  and  its  amendment 
of  1890,'*  as  soon  as  a  bankruptcy  petition  is  presented  against  a 
Acts  of  1883  debtor,  a  '  receiving  order '  may  be  made  by  the 
and  1890  Court,  which  wdll  entitle  the  Official  Receiver  of  the 
Board  of  Trade  to  assume  control,  in  the  interest  of  the  credi- 
tors, of  all  the  debtor's  property.^  Of  course,  if,  on  the  hearing 
of  the  petition,  it  is  dismissed,  the  receiving  order  will  be  can- 
celled ;  but  its  value  to  the  creditors,  as  a  precaution,  can 
hardly  be  over-estimated.  On  adjudication,  the  property  (pres- 
ent and  future)  of  the  bankrupt  (as  he  now  is)  vests  in  the 
OflBcial  Receiver,®  unless  and  until  a  trustee  is  appointed  by  the 

1  S.  125.  *  S.  126.  3  46  &  47  Vict.  c.  52. 

*  53  &  54  Vict.  c.  71.  '  Act  of  1883,  s.  5. 

'  Owing  to  a  series  of  somewhat  inconsistent  decisions  of  the  Courts,  while  free- 
hold property  coming  to  the  bankrupt  {New  Land   Development    Assocn.   v.  Gray 


MODERN   CIVIL  PROCEDURE  379 

creditors ;  and  the  summoning  and  direction  of  creditors'  meet- 
ings, and  the  conduct  of  the  debtor's  examination,  are  largely 
in  the  hands  of  the  same  official,  acting  under  the  supervision 
of  the  Registrar  of  the  Court. ^  Further,  the  Board  of  Trade  is 
charged,  not  only  with  the  appointment  and  control  of  Official 
Receivers,  who  are  its  servants,  but  with  the  audit  of  trustees' 
accounts,^  the  removal  of  incapable,  defaulting,  or  misbehaving 
trustees,^  and  the  appointment  of  trustees  in  those  cases  in 
which  the  creditors  fail  to  appoint.^  Other  noticeable  features 
of  the  Act  of  1883  are,  the  provision  for  the  expeditious  con- 
duct of  '  small  bankruptcies,'  ^  and,  of  the  Act  of  1890,  that 
for  the  actual  winding  up  in  bankruptcy  of  the  estates  of  deceased 
insolvents,^  and  severe  restrictions  on  the  granting  and  opera- 
tion of  an  order  of  discharged  Notwithstanding  all  these  pre- 
cautions, the  working  of  bankruptcy  procedure  still  leaves  much 
opening  for  criticism;  and  new  legislation  is  believed  to  be 
contemplated. 

[1892]  2  Ch.  138)  vests  at  once  in  his  trustee,  leaseholds  and  other  property  do  not, 
until  claimed  by  the  trustee,  at  any  rate  in  favour  of  bond  fide  purchasers  for  value 
from  the  bankrupt  (Cohen  v.  Mitchell  (1890)   15  Q.B.D.  262). 

1  Act  of  1883,  s.  99.  (The  old  Court  of  Bankruptcy  was,  by  the  Act  of  1883 
(s.  93  (2)  )  merged  in  the  Supreme  Court  of  Judicature;  and  its  jurisdiction  is 
exerciseable  by  a  Judge  of  the  High  Court  'assigned'  for  the  purpose.) 

2  Act  of  1883,  s.  78. 

3  S.  86 ;  Act  of  1890,  s.  19. 
*  Act  of  1883,  s.  21. 

'S.  121. 

'  S.  22.  (The  rules  of  administration  applicable  in  bankruptcy  had  been  partly 
extended  to  the  administration  of  insolvent  estates  in  Chancery  by  s.  10  of  the 
Judicature  Act,  1875). 

^S.  8. 


INDEX 


Abatement,  107, 

and  see  '  Nuisance.' 
Abjuring  the  realm,  41,  158. 
Accountant  General  in  Chancery,  213. 
'Ac  eliams;  171-173,  346,347. 
Actio  paenalis  moritur  cum  persona,  301. 
Administrator,  of  intestate's  goods,  64, 

130. 
Advowsou  93. 
^theling,  5. 
Aids,  33,  238. 
Alfred,  King,  and  'wed,'  13. 

dooms  of,  18. 
Alienation, 

choses  in  action,  of,  294. 

forms  of,  106. 

right  of,  36,  87,  102-122,  240-243. 
Ames,  on  Contract  and  Tort,  134,  138. 
Ancient  Law  (Maine),  13. 
Anefang,  8. 
Anglo-Saxon  laws, 

landownership  in,  11. 

law  of  property  in,  11. 

origin  and  character,  3-5. 

state  of,  17. 
Antiqua  Staiuta,  76. 
Appeals, 

Common  Pleas,  169. 

criminal  cases  in,  344,  345,  353. 

felony,  of,  42,  55,  59,  152,  154-156. 
Apprentices,  198-200. 
Areopagitica  (Milton's),  130. 
Arms,  Assise  of,  23. 
Arrest, 

arbitrary,  334. 

on  mesne  process,  168-173,  346-348. 
Articled  clerks  and  Law  Society,  205. 
Articuli  Clcri,  145,  158,  159. 
Assets,  administration  of,  226-233,  379. 
Assises,  23-25. 

petty  or  possessory,  93,  122. 
Assumpsit,  140,  228,  298,  301. 

and  bailment,  301,  302. 

and  'breach  of  promise,'  303. 

and  deceit,  307,  308. 

and  warranty,  308. 
Athelstan,  dooms  of,  18. 
Attachment,  172,  210. 
Attaint,  84. 

and  corruption  of  blood,  36,  181. 


Attorneys,  82,  201-206. 
'Authorised  Reports,'  191, 192. 

Bail,  150,  173. 

Bailment,  58,  88,  271,  274,  300-302. 

Bank  of  England,  287. 

Bankruptcy, 

doctrine  of  'reputed  ownership'  in, 
271,272. 

history  of,  373-379. 
Banks,  and  limited  liability,  290. 
'Barebone's     Parliament,'     see     'Little 

Parliament.' 
Bargain  and  sale,  120. 
Barnard's  Act,  288. 
Bar  of  entail,  113,  118. 
Barristers,  198-201,  337. 
Battle,  trial  by,  46,  55,  198. 
Bedford  Level,  255. 
Benefit  of  clergy,  156,  157. 
Berne  Convention,  280. 
Bill  of  Middlesex,  171,  346. 
Bills  of  Exchange,  126-128. 
Bills  of  Sale,  272,  273, 

and  see  '  Ships.' 
Blackstone,  views  on  statute  law,  186. 

on  text-books,  197. 
Blood  feud,  7,  8,  13,  42,  46,  63. 
Boc-land,  11,  12. 
Books  of  Entries,  80. 
Bootless  offences,  10,  11. 
Borh,  9,  13. 

Boroughs,  justices  in,  154. 
Bracton, 

appeals  of  felony,  42, 43. 

debt,  133. 

relation  to  Roman  Law,  20. 

right  to  alienate,  on,  37. 

terms  of  years,  on,  89. 

work  of,  11,  25,  196. 
'Breach  of  promise,'  303. 
Breve,  see  'Writ.' 
Burgage  tenure,  31. 

Cairns,  Lord,  257. 
Canon  Law,  5,  20,  21,  195. 
Capias  ad  Respondendum,  170. 

ad  Satisfaciendum,  348. 

Utlagatum,  170. 
Case,  action  of,  78,  94,  137-139. 


382 


INDEX 


Casual  ejector,  see  'Ejectment.' 
Causa,  of  contract,  66. 
Ceorl,  5,  10. 

folc-land,  11,  12. 
Cestui  que  trust,  218. 
Cestui  que  use,  96. 
Champerty,  143. 
Chancellors,  Lord,  209-212. 
Chancery,  see  '  Court.' 

officials,  210-212. 
Charters,  public,  22. 

private,  see  '  Feoffment.' 
'Chattel  real,'  90. 
Chattels, 

origin  of  term,  11. 

development  of  law  of,  266. 

seizure  of,  274. 
Chester,  law  of  succession  in,  268,  269. 
Chevisaunce,  128. 

Choses  in  action,  92,  123-130,  266,  274, 
275. 

transfer  of,  294-297. 
Church,  and 

debts  of  deceased,  65. 

intestate  succession,  60-64. 

judicial  ordeals,  46. 

property  of,  29-31. 
Church  Courts,  see  'Courts.' 
Circuit  system,  reform  of,  370,  371. 
Civil  Conspiracy,  see  'Conspiracy.' 
Civil  Procedure,  see  Table  of  Contents. 
Civil  Procedure,  Act  of  1833,  351. 
Clarendon,  Assise  of,  23,  40,  41,  42,  46, 

51,  158. 
Clarendon,  Constitutions  of,  22,  30,  65, 

74,  156. 
Clearing  oath,  see  'Oath  helpers.' 
Clementines,  21. 
Clifford's  Inn,  203. 
'Clogging  the  equity,'  249. 
Cnut,    legislation  attributed  to,   18,  39, 

60. 
Coke,  Sir  E., 

authority  of  Parliament,  on,  186. 

quarrel  with  EUesmere,  165. 

works  of,  81,82,  196. 
'Colour,'  162,  163,  359. 
Combination  Laws,  repeal  of,  315-317. 
Commission  of  rebellion,  208. 
Commissioners  of  Great  Seal,  211. 
Common  Bench  (or  Pleas),  see  'Courts.' 
Common  employment,  doctrine  of,  317- 

319. 
Common  Law, 

contracts,  o£,  216,  217. 

inheritance,  of,  251. 

Law  Merchant,  and,  235. 

married  women's  property,  of,  225. 

origin  and  growth  of,  17-25. 

register  of  writs,  in,  45. 


sources  of,  75-82. 

tenures  in,  32. 
'Conmion  law'  conspiracy, 

civil,  332-337. 

criminal,  320-323. 
Common  Law  Procedure  Acts,  358-360. 
Common  Recovery,  88,  90,  111-115,  118. 
Commons  preservation,  264. 
Commons,  see  'Enclosures.' 
Commonwealth, 

attitude  towards  Church  courts,  228, 
303. 

printing,  277. 
Companies, 

Act  of  1862,  290. 

Act  of  1908,  292. 

debentures  of,  290,  291. 

directors'  liability,  291. 

introduction     of     limited     liability, 
288,  289. 

joint  stock,  287-292. 

legislation  of  1900,  291. 

monopolies,  287. 

public  and  private,  289. 

regulated,  129. 

winding-up  of,  291. 
Compleate  Copyholder  (Coke),  12,  73. 
Consideration,  139,  140,  273,  296-298. 
Consiliatio  Cnuti,  18. 
Consimilis  Casus,  see  'Case.' 
Consolidation  (of  mortgages),  216. 
Conspiracy,  142,  143,  148,  307,  319-327. 
Constitutions  of  Clarendon,  22,  30,  65, 

74,  156. 
Contingent  remainders,  85,  86,  103,  253. 

trustees  to  preserve,  108. 
Continual  claim,  117. 
Contract, 

Ijailment  and,  300-302. 

de\elopmcnt  of,  65-67. 

early  stages  of,  13. 

infants,  of,  304. 

later  history  of.  88,  132-140,  298-307. 

married  woman,  222,  223,  305. 
"  procuring  breach  of,  147,  148. 
-  specific  performance  of,  209,  216. 
Conversion  (equitable  doctrine),  231,  232. 

(tort),  142. 
Conveyancing  precedents,  197,  198. 

copyholds,  32,  33,  103,  179,  238. 

copyholders  and  King's  Courts,  72, 
119. 

debts,  liability  for,  250. 

forfeiture  for  treason,  219. 

Statute  of  Wills,  240,  241. 
Copyright,  129. 

history  of,  276-283. 

Licensing  Act,  191. 

statutory  recognition,  130. 
Coram  Rcgc  Rolls,  24.  ' 


INDEX 


383 


Corporation, 

recognition  of,  106. 

Trade  union  not,  322,  327-329. 
Corpus  cum  Causa,  see  'Habeas  Corpus.' 
Corpus  Juris  Canonici,  21,  185. 
Corpus  Juris  Civilis,  4,  20,  185. 
Corruption  of  blood,  84. 
Costs  in  criminal  cases,  342. 
Council  of  Law  Reporting,  194,  201. 
Council  of  Legal  Education,  200. 
Council  of  the  Magnates,  30. 
Counsel,  see  'Barristers.' 
Countor,  161. 
Courts, 

Admiralty,  147,  195. 

Augmentations,  237. 

Chancery,  80,  97,  104,  201. 

administration  of  assets  by,  229- 

230. 
mortgages  and,  124,  125. 
procedure  of,  163-182. 
reform  of,  356-358,  361-363. 
uses  and,  97-99. 

Church,  21,  39,  40,  74,  75,  145,  195, 
223-229,  269. 

Common  Bench  (or  Pleas),  117,  169— 
173. 

County,  73,  179,  371-373,  376. 

Divorce,  204. 

Exchequer,  169,  234. 

Feudel,  40,  71-73. 

Hundred,  21,  73-74,  153. 

Merchant,  40,  75. 

Probate,  180,  269. 

Requests,  179. 

Rolls,  215. 

Shire,  73. 

Sipall  Debts,  179. 

Star  Chamber,  80,  146, 147,  166, 167, 
209,  276. 

Wards,  100,  237. 
Covenant,  see  'Writ.' 
Covenant  to  stand  seised,  120. 
Criminal  informations,  336. 
Criminal  law  and  procedure,  40,  52,  150- 
160,  340.  342. 

consolidation  of  statutes,  341,  342. 

new  crimes,  149. 

reforms  in,  332-345. 
Criminous  clerks,  157,  159. 
Curia  Regis,  54. 

unhistoric  theory  of,  364,  365. 
Curtesy,  220-223,  243. 

Damages, 

general  and  special,  95,  311. 

liquidated  and  unliquidated,  60. 
Danegeld,  27,  28. 

D'arrein  presentment,  assise  of,  50,  93,  94. 
Darrocade,  10. 


De  Banco  Rolls,  24. 
Debentures,  see  'Companies.' 
Debt,  56-58,  133,  173. 

and  detinue,  301. 

and  wager  of  law,  140,  168. 
Debts  of  deceased  persons,  62. 

liability  of  land  (or  heir)  for,  62,  63, 
250,  251. 
Deceit,  138,  140,  308,  309. 
Decretales,  21. 
Decretum  Graiiani,  21. 
DeDonis,  87,  102,  112,  117. 
Deeds,  and  conveyancing,  255. 
Defamation,  144-147,  309-312. 
Demurrer,  164. 
Deodand,  181. 

Deprivation  of  services,  324,  325. 
Descent  cast,  108. 
Designs,  see  'Patents.' 
Detinue,  58,  132-135. 

arrest  on  mesne  process  in,  172. 

sur.  bailment,  142,  300-302. 

sur  trover,  142. 
Devesting  of  remainders,  108. 
Dialogue  of  the  Exchequer,  169. 
Director    of    Public    Prosecutions,    see 

'Public  Prosecutor.' 
Directors  (company),  236,  291. 
Discipline  Committee,  205,  206. 
Discontinuance,  107. 
Disseisin,  107,  108. 
Distress,  8,  33,  44,  208. 
Distribution,  Statutes  of,  131,  267-269, 

and  see  'Succession.' 
Distringas,  172. 
Doctor  and  Student,   139, 140,   163,   167, 

168,  209. 
Domesday  Book,  24,  27. 
Domicile  (wills),  271. 
Dower,  114,  125,  220,221. 

Easements,  94. 

East  India  Co.,  287. 

Edmund,  dooms  of,  18. 

Edward  the  Confessor,  Laws  of,  19. 

Edward  the  Elder,  dooms  of,  18. 

Ejectment,  87,  90, 168, 173-176, 242,  359. 

Eldon,  Lord,  225. 

Election,  doctrine  of,  234. 

Elegit,  95,  165,  208. 

Ellesraere,  Lord,  165. 

Enclosures,  262-265. 

English  language  in  the  Courts,  348. 

'English  Laws,'  see  ' Quadripartitus.' 

Entails, 

bar  of,  113,  118,  243,  384. 

introduction  of,  86-87. 
Entries,  Books  of,  81. 
Entry,  right  of,  108. 

writs  of,  see  'Writ.' 


384 


INDEX 


Equitable  fraud,  309. 
Equitable  waste,  92. 
Equity, 

alleged  author  of  'valuable  considera- 
tion,' 298. 

development  of,  211. 

early  history  of,  208-210. 

mortgages,  and,  216. 

procedure,  164. 
Equity  to  a  settlement,  224,  225. 
Escheat,  36,  41,  84,  85,  218,  219. 
Esne,  6. 

Estate  pur  autre  vie,  105,  239. 
Estoppel,  111,  112. 
Estovers,  94. 
Etheling,  see  '^theling.' 
Ethelred,  dooms  of,  18. 
Evidence, 

oral,  see  'Witnesses.' 

written,  see  'Statute  of  Frauds.' 
'Exceptions,'  43. 
Exchange,  bills  of,  126-128. 
Exchequer,  Court  of,  see  '  Court.' 

Equity  jurisdiction  of,  235. 

Orders  of,  see  'Rules  and  Orders.' 
Exchequer  of  Pleas,  see  'Courts.' 
Exchequer  (Plea)  Rolls,  24. 
Execution,  public,  342. 
Executor, 

administration  of  assets  by,  226. 

appearance  of,  63,  64,  111. 

and  heir.  111. 

liability  for  debts  of  deceased,   130, 
299. 

remedies  by  and  against,  130, 301,  307. 

takes  residue  undisposed  of,  131,  267. 
Executory  devises,  104. 
Extravagantes,  21. 

Factory  System,  introduction  of,  315. 

Family  Settlements,  see  'Settlements.' 

Fatal  Accidents  Acts,  307,  308. 

Fealty,  32. 

Fee  simple,  87,  103. 

Fee  tail,  see  '  Entails.' 

Feet  of  Fines,  see  '  Fines.' 

Felony, 

appeal  of,  42,  155. 

appearance  of,  41. 

classification,  151. 
Feoffee  to  uses,  96. 
Feoffment,  106,  255. 

beneficial  operation  of,  107. 

charters  of,  107. 

deed  of,  163. 

mortgage  bj',  125. 

tortious  operation  of,  107,  122,  255. 

transfer  by,  254. 
Ferni,  88. 
Fermors,  and  waste,  91. 


Feud,  see  'Blood  feud.' 
Fines  (lawsuits), 

abolition  of,  254,  255. 

Feet  of,  24,  115. 

generally,  87,88,  115-117. 

Little  Parliament,  and,  178. 

Proclamation  of,  117. 

tenant  in  tail,  by,  118. 
Fines  (penalties), 

in  copyholds,  179. 

on  alienation,  238. 

on  descent,  34. 
Fire,  liability  for  damage  done  by,  311. 
Fitzherbert,  81,  82,  151. 

and  Justices  of  the  Peace,  156. 

and  sessions,  154. 
Five  K?iights'  Case,  334. 
Folc-land,  12.  13. 
Following  the  trail,  7. 
Forcible  Entry,  Statutes  of,  175,  176. 
Forfeiture,  civil,  103,  108,  219,  241-243, 
342. 

for  felony,  41. 
Formedon,  see  '  Writs.* 
Fortescue,  works  of,  81. 
Franchises,  92. 
Frankalmoign,  29-31. 
Frauds,  Statute  of,    105,  220-222,  239, 
295,  298,  299,  303,  304,  308. 

Amendment  Act,  308. 
Friars  and  uses  of  land,  96. 
'Fusion'  of  Law  and  Equity,  357-369. 
Future  interests  in  land,  83. 
Fyrdwite,  10. 

Gage,  see  'Pledge.' 

Gavelkind,  31,  35. 

General  Council  of  the  Bar,  200. 

General  Sessions,  see  'Quarter  sessions.' 

'  General  Warrants,'  277,  335. 

Gesith,  5,  10. 

Glanville's  treatise,  24.- 

Action  of  Debt,  133. 

contracts,  65,  66,  135. 

covenant,  135. 

pledge  of  land,  124. 

right  to  alienate,  38. 

terms  of  j^ears,  89. 
'Grace,'  208-212. 
Grand  Assise,  23,  49,  163. 
Grand  (or  accusing)  Jury,  see  'Jury.' 
Grants,  118,  254,  255. 
Guardians,  and  Waste,  91. 

Habeas  Corpus,  333-335. 

Halsbury,  Lord,  and  registration  of  title, 

258-260. 
and  contracts  in  restraint  of  trade, 

321. 
Hand  muss  Hand  wahren,  59. 


INDEX 


385 


Harbouring,  147. 

Hardwicke,  Lord,  211,  214,  279,  297,  304. 

Heir, 

and  executor,  111. 

liability  for  deceased's  debts,  62-64. 
Henry  I,  Laws  of,  18. 
Henry  II,  reforms  of,  48,  49. 
Hereditas,  37. 
Heriots,  34. 
Holt,  Lord,  302,  303. 
Homage,  32,  109. 

'Hue  and  Cry,'  see  'Bootless  Offences.' 
Hundred,  and  Grand  Jury,  40. 
Hundred,  Ordinance  of  the,  11. 
Hundred  Rolls,  28,  72. 
Husband,      and     wife's     property,    see 
'  Married  Women.' 

Implied  trusts,  221. 
Improvement  of  land,  246. 
Inclosures,  see  'Enclosures.' 
Incorporated    Laws    Society,  see    'Law 

Society.' 
Incorporeal  hereditaments,  92-95. 
Indictments,  151,  158. 
Infants, 

contracts  of,  304,  305. 

settlements  of,  304. 
Inheritance,  35,  87,  219,  220. 

change  in  law  of,  64,  65,  111,  251. 
Injunction    and    Chancery    jurisdiction, 
144,  166,  209,  284. 

Common  Law  Courts,  360. 
Inns  of  Chancery, 

decay  of,  203. 

history  of,  202. 
Inns  of  Court, 

later  history  of,  199-201. 

settlement   of    common    lawyers   in, 
20. 
Inquests, 

knights  fees,  24,  37  n.,  48. 

sheriffs,  40. 

tenants  in  capite,  24. 
Inrolments,  Statute  of,  120. 
Instituta  Cnuti,  18. 
Insurance  (National)  Act,  331. 

companies  and  limited  liability,  290. 
Interest,  see  'L^sury.' 
Intertiatio,  8. 

Intestacy,  see  '  Succession,  Law  of.' 
Intrusion,  107. 
'Isidore,'  ps,  21. 

Jekyll,  Sir  Joseph,  214. 
Jervis'  Acts,  340,341. 
Joint    Stock    Companies,    see    'Compa- 
nies.' 
Jones,  Sir  William,  302. 
Judicature  Acts,  364-372. 


Jury, 

composition  of,  47,  162. 

copy  of  'panel,'  336. 

of  accusation  (Grand  Jury),  51,  152, 
179,  332. 

origin  of,  48,  162. 

partial  abolition  of,  369. 

petty  jury,  51,  152,  332. 

trial  by,  43,  45-54,  162. 
Justices  of  the  Peace,  150. 

appointment  of,  153. 

marriage  before,  178. 

powers  of,  152-154. 

Sir  John  Jervis'  Acts,  340,  341. 

small  debts  courts,  179. 

special  privileges  of,  340. 

Keeper,  Lord,  208. 
Kenyon,  Lord,  229. 
King,  and 

criminal  law,  10,  11. 

feudal  jurisdiction,  48. 

land  law,  13,  26-38. 

local  moots,  39. 

trial  by  jury,  48. 

writ  of  summons,  43. 
King's  Counsel,  199-200. 
Knight  service,  29. 

Labour,     regulation     of,     see     'Trade 

Unions.' 
Labourers,  Statutes  of,  147,  148,  150,  313. 
LcEsio  fidei,  13. 
Laet,  6. 

Lambard,  1.50,  152. 
Land  charges,  registration  of,  261. 
Land-hlaford,  6. 
Land-rica,  6. 
Lapse,  see  'Will.' 
Larceny,  appeal  of,  see  'Appeals.' 
Latitat,  see  'Writs.' 
Law  Merchant,  40,  127,  235,  297. 
'Law  Reports,'  the,  193-195. 
Law  Society,  The,  204-206. 
'Lease,  entry,  and  ouster,'  177. 
Leases, 

by  limited  owners,  247. 
by  mortgagees  and  mortgagors,  248-9. 
Leet  sessions  of  High  Constable,  153. 
Legacies,  in  the  Common  Law  Courts, 

229. 
Legal  profession,  history  of,  198-206. 
Leges  Barharorwn,  4. 
Leges  Edwardi,  19. 
Leges  Henrici  (Primi),  18. 
Leges    Willelmi,    or    Leis    Willelme,    or 

Leis  Williame.  18,  19,  60. 
Le  mart  saisit  le  vif,  107. 
Letters  Patent,  see  'Patents.' 
Lex  Mercaioria  (Malynes),  75,  128. 


386 


INDEX 


Lex  Rihuaria,  11. 

Lex  Salica,  4. 

Lex  Tcrrae,  17. 

Libel,  see  '  Defamation.' 

Liber  Intrationum,  1(52. 

Licensing  Act  and  copyright,  191 ,  277, 278. 

Limitation  of  Actions, 

land,  353,  354. 

personalty,  351. 

and  see  '  Prescription.' 
'Little  Parliament,'  law  reform  scheme 

of,  178-182. 
Liverj-  of  seisin,  see  'Feoffment.' 
Local  custom  and  copyholds,  31,  32. 
Locke  King's  Acts,  251,  252. 
London,  law  of  succession  in,  268,  269. 
Lords,     House     of,     judicial     functions 

abolished,  366. 
Lordship,  recognition  of,  84. 
Lynch  law,  10. 

Magna  Carta, 

intestate  succession,  60. 

mortmain,  31. 

trial  bj^  jury,  48. 
Maintenance,  86,  143, 144,  176,  241. 

a  criminal  offence,  143. 
Malberg  Glosses,  4. 
Malicious  Prosecution,  142. 
Mandamus,  73,  360. 
Mannbot,  6. 

Mansfield,  Lord,  230,  234. 
Market  overt,  156. 

Marriage  law,  scheme  of  Little  Parlia- 
ment, 178. 
Marriage,  right  of,  34. 
Married  women, 

contracts  of,  222,  305,  306. 

equity  to  a  settlement,  223,  224. 

powers  of  disposition,  224,  305,  306. 

property  of,  222-226,  305,  306. 

restraint  on  anticipation,  225,  300. 

torts  of,    222,  306. 
Marshalling,  doctrine  of,  230,  252. 
Master  and  Servant  Act,  1867,  321,  322. 
Master  of  the  Rolls, 

controversy    as    to    jurisdiction    of, 
213,  214. 

office  of,  213. 

solicitors,  and,  205. 

statutory  enlargement  of  jurisdiction, 
214. 
Masters  in  Chancery,  212,  213,  361. 
Merchant  Shipping  Acts,  294. 
Merchet,  34. 

Mcrton,  Statute  of,  22,  262,  263. 
Mesne,  writ  of,  33. 
Meuhle  n'a  suyte,  59. 
Middlesex,  registration  of  title  in,  256. 
Military  tenures,  abolition  of,  237-239. 


Misdemeanours,  41,  151. 
Modus  Levandi  Fines,  76,  115. 
Monoplies,  129, 

and  see  'Patents.' 
Mort  d' Ancestor,  assise  of,  49. 
Mortgage  ancestral,  252. 
Mortgages,  56,-  123-126,  215,  216,  248- 

250,  252. 
Mortgages    and    mortgagors,    statutory 

powers  of,  248. 
Mortmain,  31,  96,  105,  106. 

Nam,  see  'Distress.' 

Narratio,  161. 

Navigation  Acts,  292,  293. 

Negligence,  see  'Non-feasance.' 

Negotiable  Instruments,  297. 

New  Inn,  203. 

Newspaper  Libels,  309,  310. 

Nil  habuit  in  tenementis,  116. 

Non-feasance,  liability  for,  138,  139,312, 

313. 
North,   Roger,  on  'ac  etiams,'  347,  348. 
barristers  and  attornej-s,   203. 
his  brother's  settlement,  223. 
Northampton,  Assise  of,  23,  41,  42,  46, 

63,  158. 
Novel   Disseisin,   Assise  of,   23,   50,   67, 

94,  126,  163. 
Nuisance,  94,  143. 

Oath-Helpers,  9,  47, 

and  see  'Wager  of  Law.' 
Odio  et  Atid,  writ  of,  43 
Oferhyrnes,  10. 
Official  Referees,  369. 
Old  Age  Pensions  Act,  331. 
'Once  a  mortgage,'  etc.,  215. 
Ordeal,  trial  by,  9,  10,  41,  46. 
Orders  in  Council,  187,  188. 
Ousterlemain,  238. 
Outlawry  (civil),  170. 

Parliament,  sovereignty  of,  185. 
Parliamentary  Papers,  309. 
Partition,  105. 

Passing    off,    see    'Trade    names.' 
Patents  — 

Act  of  1883,  285. 

Acts  of  1907,  285. 

history  of,  283-287. 

origin  of,  128. 

Register  of,  285. 
'Peaceful  picketing,'  323,  324,  329. 
Peasants'  War,  consequences  of,  72,  147, 

313. 
Peel's  Acts,  338,  339. 
Peers,  tried  by,  48  n. 
Peine  forte  et  dure,  51. 
Penal  servitude,  338. 


INDEX 


387 


Performance  see  'Satisfaction.' 
People's  Ranks,  5,  19. 
Perpetuities,     see     'Rule    against    Per- 
petuities.' 
Petty  Assises,  see  'Assises.' 
Petty  sessions,  153. 
Pleadings  — 

Equity,  163,  164. 

form  of,  162,  163. 

in  English,  161  n,  348,  349. 

oral,  161. 

reform  of,  368,  369. 

written,  161. 
Pledge,  13,  19,  56,  124. 
Police,  modern,  339. 
Pone,  writ  of,  see  'Writs.' 
Poor  Prisoners'  Defence  Act,  344. 
Possession  — 

and  seisin,  89,  99,  100. 

'apparent  possession,'  272. 

transfer  without  possession,  271. 
Possessory  assises,  see  'Assises.' 
Practice-books,  161,  196,  197. 
Preference,  226. 
Prescription,  354-356. 
Primogeniture,  35. 
'Private  agreements,'  133. 
Privilege,  see  'Writs.' 
Probate  procedure,  182. 
Procedure,  reforms  suggested  by  Little 

Parliament,  181. 
Proclamations,  117,  118,  187. 
Proctors,  204. 
Procuring  breach  of  contract,   147,  148, 

325. 
Provisions  of  Oxford,  22. 

Westminster,  22. 
Public  Prosecutor,  343. 
Purveyance,  238. 

Quadripartitus,  18. 
Quare  impedit,  93  n. 
Quarter  Sessions  — 

establishment  of,  150. 

jurisdiction  of,  152. 

proclamations  at,  117. 
Quia  Emptores,  102,  105,  109,  238. 
Quod  Permittat,  see  '  Writs.' 
Quominus,  see  'Writs.' 
Quo  Warranto,  72. 

Ratification,  see  'Infanta.' 
Reading-test,  157. 
Real  Actions  — - 

abolition  of,  353,  361. 

decay  of,  175. 

establishment  of,  47,  49-51,   57,   93, 
112,  113. 
Reasonable  parts,  see  'Succession,  law  of.' 
Recovery,  see  '  Common  Recovery.' 


Register  of  Writs,  45,  77. 
Registration  of  Bills  of  Sale,  273. 
Registration  of  titles,  ISO,  255-261. 
Release,  121,  122. 

statutory  122. 
Relief  against  forfeiture,  242. 
Reliefs,  33. 

Remaindermen,  interests  of,  253. 
Remainders,  84-86. 
Remitter,  107. 
Rent  charge,  94. 

service,  33,  94. 
Replevin,  9,  44,  172. 
Replicalio,  162. 

Reports  (of  cases),  80,  190-195. 
Reputed  ownership,  271. 

and  see  'Bankruptcy.' 
Restitution,  see  'Writs.' 
Restraint  on  anticipation,  225. 

of  trade,  235. 
Retainer,  226. 
Retrait,  36. 

Reversions,  83,  84,  90. 
Right,  Writ  of,  see  'Writs.' 
RoUe,  C.  J.,  and  the  Action  of  Eject- 
ment, 177. 
Roll  of  solicitors,  201,  205. 
Rolls,  Master  of  the,  see  '  Master  of  the 

Rolls.' 
Roman  Law  — 

and  the  Common  Law,  19. 

as  an  authority  in  English  Courts, 
195. 

Corpus  Juris  of  Justinian,  19. 

influence  in  England  secret,  20. 

opposition  to  in  England  and  France, 
20. 

spread  to  England,  19,  20. 
Rotuli  Curiae  Regis,  24. 
Royal  Commissions  on  — 

civil  procedure,  357. 

courts  (Judicature),  364. 

criminal  law,  338,  341. 
Rule  against  Perpetuities,  225,  244. 
Rules  and  Orders  of  Court,  188-190,  351, 
352. 

Sanctuary,  privilege  of,  158-160. 

Satisfaction,  doctrine  of,  232. 

Scandalum  Magnatum,  146. 

Sci.  Fa.,  abolished  as  to  patents,  286. 

Scriveners,  202. 

Scutage,  33. 

'Seduction,'  action  of,  147. 

Seisin  — 

abeyance  of,  85. 

advowsons  and,  93. 

Bracton  and  terms  of  years,  89. 

petty  assises  and,  49. 

pledges  and,  124. 


;s8 


INDEX 


Seisin  — 

possession  and,  89,  99,  100. 

protection  of,  90. 
Selden  Society  publications,  145. 
Semper  fuerunt  seisiti,  117. 
Separate  use,  see  'Married  Women.' 
Sequestration,  210. 
Serjeants,  161,  198,  199. 
Service,  and  tenure,  33. 
Servitudes,  92. 
Sessions  — 

Petty,  see  'Petty  Sessions.' 
.Quarter,  see  'Quarter  Sessions.' 
Settled  Estates  Acts,  244,  245. 
Settled  Land  Acts,  247-249. 
Settlements,  244-251. 
Severance  of  reversion,  242. 
Sext,  21. 

Shares,  see  'Companies.' 
Sheriff  — 

preliminary  enquiry  in  criminal  pro- 
cedure, 40. 

writ  of  summons,  and,  44,  169. 
Ships  — 

bills  of  sale  of,  293,  294. 

division  into  shares,  293. 

Merchant  Shipping  Acts,  294. 

Navigation  Acts,  292,  293. 

register  of,  293. 
Sittings  (of  the  Courts),  see  'Terms.' 
Six  Members'  Case,  334. 
Slander,  see  '  Defamation.' 
Small  Debts  Courts  — 

set  up  in  18th  century,  38. 

suggested  by  Little  Parliament,  179. 
Socage,  28. 

conversion  of  military  tenures  into, 
238. 

rights  and  duties  of  socagers,  28,  29. 
Society  of  Gentlemen  Practisers,  204. 
Solicitors,  see  'Attorneys.' 
South  Sea  Bubble,  and  Chancery  funds, 

212. 
South  Sea  Company,  287. 
Specific  Performance,  209,  216,  217. 
Specific  recovery  of  chattels,  57-60,  209, 

360. 
Spelman,  on  'folc-land,'  12  n. 
Staple,  Statute  of  the,  126. 
Star  Chamber,  see  'Court.' 
State  action  — 

absence  of  in  early  society,  7,  9. 

beginnings  of  in  criminal  law,  9. 
Stationers'   Company,  history  and  pow- 
ers, 276-279. 
Status  system  of  early  England,  5. 
Statutes  (generally),  22,  76,  186,  187. 
Statutes,   Merchant  and  Staple,   126. 
Stipendiary  Magistrates,  337,  338,  341, 

and  see  'Justices  of  the  Peace.' 


Stock,  see  'Companies.' 
Subinfeudation,  33,  36,  37,  102,  106. 
Subpoena,  see  'Writs.' 
Subrogation,  see  'Marshalling.' 
Substitution,  37,  106,  109. 
Succession,  law  of,  60-65,  266-271. 
Suit  of  Court,  32. 
Summary  Jurisdiction,   see   'Justices  of 

the  Peace.' 
Supreme   Court,    establishment   of,   365. 
Surrender  and  admittance,  119. 
Symbolceographia,  82. 

Tacking,  216. 

Taff  Vale  Case,  327,  328. 

Tail 

estate,  see  'Tenant  in  tail.' 

tenant  in,  'Tenant  in  tail.' 
'  Tnltarum's  Case,'  88,  175  n. 
Tenant  — 

for  life,  and  warranty,  112. 
and  waste,  91. 

mortgage,  and  improvements  by, 
248. 

for  years,  83-101. 

and  warranty,  112. 

in  capite,  and  alienation,  103. 
and  waste,  91. 

in  tail,  107,  113,  118,  241,  243,  244. 
Tenure  — 

abolition  of  military,  237-240. 

advowsons  held  by,  93. 

appearance  of  principle,  12. 

common  and  local,  32. 

conversion  of    People's    Ranks    into, 
19. 

free  and  unfree,  31. 

incidents  of,  31,  95,  218. 

under  William  the  Conqueror,  27,  32. 
Terms  (Court),  370,  371. 
Terms  of  years,  88-90. 

assignment  of,  100,  103. 

Bracton's  view  of,  89. 

Glanvillc's  view  of,  88. 

mortgages  by',  126. 

recovery  in  Ejectment,  173-175. 
Testament,  see  'Will.' 
Text-books  — 

as  authorities  in  English  courts,  196. 

early,  23,  80,  121. 
Thogn,  6,  7,  10. 

connection  with  land,  12. 

local  jurisdiction,  39. 
Theodosian  Code,  5. 
Thcow,  6. 

Thurlow,  Lord,  225. 
'Tied  houses,'  235. 
Tiht-hysig,  9. 

Timber,    mortgagee  in    possession    and, 
249. 


INDEX 


389 


Tolt,  51. 

Torrens  system,  256. 

Tortious  operation,  see   'Feoffment.' 

Torts  — 

development  of,  67. 

early  notion  of,  12. 

history  of,  132-148,  .307-313. 

law  of  personal  property  and,  123. 

married  women,  of,  305. 

statutor.v,  147. 
Trade  Disputes  Act,  329. 
Trade  marks  — ■ 

Registration  Acts,  285,  286. 
Trade  names,  284. 
Trade  Unions,  315-317,  319-331. 
Trail,  following  the,  see  'Following  the 

Trail.' 
Transportation,  337. 
Treason,  Law  of,  149,  151. 

appeals  of,  155. 

forfeiture  of  copyholds  for,  218. 

forfeiture  of  entailed  estates,  244. 

trials  for,  336,  337. 
Trespass,  see  'Writs.' 
Trover,  141,  142,  209. 
Trusts  — 

after  Restoration,  218-222. 

Statute  of  Frauds,  and,  220. 

Statute  of  Uses,  and,  100,  101,  218. 

Undertaking,  see  'Assumpsit.' 
Uniformity  of  Process,  349-351. 
Uses  of  land,  95-101,  218. 

origin  of,  95. 

protection  of,  97. 

recognition  of  future  uses,  104. 

springing  and  shifting,  120. 

upon  uses,  100. 

wills  of,  104. 
Uses,  Statute  of,  99-101,  104,  118,  119, 
218. 

effects  of,  99. 

uses  not  within  Statute,  100. 
Usury,  125. 
Utrum  (Assisa),  30. 

Valuable    consideration,    see    'Consid- 
eration.' 
Vee  de  Nam,  see  'Distress.' 
Vendor  and  Purchaser  Act,  255. 
'Venue'  abolished,  351. 
Vifgage,  see  '  Mortgage.' 
Villengage,  28,  35 
Vinogradoff,  P., 

discovery    of    Bracton's    Notebook, 
25. 

on  'folc-land,'  12. 

on  villainage,  28. 
Vouchers,  Statute  of,  110. 
Vouching  to  warranty,  see  'Warranty.' 


Wager   of  law,    46,    58,    133,  140-142, 

168,  301,  351. 
Wages,  fixed  by  law,  31.3-315. 
Warranty,   11,    50,  56,  59,  87,89,   109- 
113,  308. 

commencing  by  disseisin,  112. 
Waste,  90-92. 

equitable,  92. 
Wed,  10,  13. 
Welsh  Laws,  5. 
Wergilds,  5,  8,  9,  11,  158. 
West,    William,    see    '  Symbolceographia.' 
Westbury,  Lord,  262. 
Westminster,  Provisions  of,  22. 

Statute  of,  262. 

and  see  '  De  Donis.' 
William     the     Conqueror,     'Laws'     of, 

18,  19. 
Wills  — 

Act  of  1837,  270. 

Chancery  jurisdiction  in,  227. 

domicile,  271. 

form  of,  270. 

land  of,  64,  104,  105. 

lapse  under,  270. 

personal    property   of,    61,   62,    130, 
269,  295. 

revocation  and  revival  of,  270. 

uses  of,  104. 
Winding-up,  see  'Companies.' 
Witc,  158. 
Witnesses  — 

bills  of  sale,  to,  273. 

civil  cases,  343,  360,  370. 

confirmation  of,  304. 

criminal  cases,  332,  337,  341,  342. 

trial  by,  47. 

wills,  to,  269,  270. 
Women,  slander  of,  310. 
Woodstock,  Assise  of,  23. 
Workmen's  Compensation  Acts,  330,  331. 
Writs  —      ■ 

Account,  64,  229. 

Capias  ad  respondendum,  170. 

Capias  Utlagaturn,  170. 

Certiorari,  169. 

Champerty,  143. 

Conspiracy,  142,  143. 

Convenant,  89,  115,  135. 

Debt,  56,  133,  347. 

Deceit,  137,  307. 

Detinue,  57-60,  123,  134. 

Ejectment,  90,  173. 

Entry,   50,   52,   67,   84,   89,   94,    122, 
175. 

Fi.  Fa.,  59,  210. 

Formedon,  84,  87. 

Latitat,  171,  347. 

Ma  nda  tnus,  119. 

original  or  judicial,  45,  78,  164. 


390 


INDEX 


Vrrits  —  (continued) 
Pone,  51. 
Possession,  110. 
Prerogative,  45. 
Privilege,  333,  334. 
Prohibition,  74,  169. 
Quare  Ejecit  infra   Terminum,  90. 
Quod  Permittat,  93,  144. 
Quominus,  172. 
Register  of,  45,  77. 
Restitution,  156. 

Right,  40,  49,  55,  67,  93,  110,  111. 
.  Seisin,  118. 


Subpoena,  97,  98,  164. 

Summons,  43-45. 

Toll,  51,  73. 

Trespass,  52,  53,  67,  90,  94,  122,  123, 

136,  162,  171,  347. 
Trover,  123. 
Warrantia  Carta,  110. 
Warranty,  110. 
Waste,  91,  92. 

Year  Books,  78,  79,  190. 

York,  law  of  succession  in,  268,  269. 

Yorkshire,  registration  of  title  in,  256. 


NO' 


\03o^' 


SOUTHERN  REGIONAL  UBRARY  FACIUTY 


AA      001336  881        6 


CENTRAL  UNIVERSITY  LIBRARY 
University  of  California,  Saji  Diego 

DATE  DUE 

JUN  21  1979 

JUN12  1379 

CI  39 

UCSD  Libr. 

